Rieger v. Schaible

• Decision Date: 05 March 1908
• Docket Number: 15,049
• Citation: 115 N.W. 560,81 Neb. 33
• Parties: AMELIA RIEGER, APPELLEE, v. CARRIE SCHAIBLE ET AL., APPELLANTS. [*]
• Court: Nebraska Supreme Court

115 N.W. 560

81 Neb. 33

AMELIA RIEGER, APPELLEE, v. CARRIE SCHAIBLE ET AL., APPELLANTS. ^[*]

No. 15,049

Supreme Court of Nebraska

March 5, 1908

APPEAL from the district court for Richardson county: WILLIAM H KELLIGAR, JUDGE. Reversed.

REVERSED.

Reavis & Reavis, for appellants.

Clarence Gillespie and Edwin Falloon, contra.

EPPERSON C., DUFFIE, C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C. J.

This appeal involves the validity of an antenuptial contract entered into December 11, 1897, by and between Henry Rieger a widower, and Mrs. Amelia Lawler, a widow. The agreement was acknowledged, and its material portions follow:

"Whereas Henry Rieger and Amelia Lawler are about to enter into a contract of marriage, and whereas said Henry Rieger is the owner of certain real estate and personal property, at this date, and Amelia Lawler is also the owner of certain real estate and personal property, at this date, and whereas said Henry Rieger and Amelia Lawler may at any time be desirous of disposing of said real estate and other property, divested of the curtesy, dower, or other claims of said Henry Rieger and Amelia Lawler either by deed or will: Now, therefore, in consideration of said Henry Rieger and said Amelia Lawler consummating and completing said contract of marriage, said Henry Rieger and Amelia Lawler hereby agree to waive and release, and do waive and release and forever quitclaim and renounce all dower and other interest in and to said real estate and personal property that said Henry Rieger and Amelia Lawler may now have or hereafter acquire by any means whatsoever. The intention being hereby to leave the absolute disposal of said real estate and other property now owned or hereafter acquired by either of them, unless taken in their joint names, so that at the death of said Henry Rieger and Amelia Lawler all of the property of said Henry Rieger and Amelia Lawler, real, personal, and mixed, shall descend to his and her lawful heirs released and divested of all claims of dower curtesy or other interest that said Henry Rieger and Amelia Lawler might have as widow or widower under the laws of the state of Nebraska. And in consideration of the consummation of said marriage said Henry Rieger and Amelia Lawler hereby releases, cancels, and waives all claims to all property of said Henry Rieger and Amelia Lawler to which they might be entitled as wife or widow, husband or widower. Any money transactions between the said parties may be represented by notes which, if not sooner paid, shall be a lien on their respective properties after death, and nothing in the above shall be construed to affect the right of either party to make a will disposing of their various properties contrary to this agreement, if either of them should so desire."

Each party was the owner of real and personal property when the above contract was made, and each then had children living, the issue of a former marriage. The parties were married three months after the execution of the agreement, and lived together as husband and wife until the death of Henry Rieger on February 7, 1905. No children were born of their marriage. Henry Rieger left personal property worth $ 17,560.13, and six lots in Falls City, Nebraska, valued at $ 3,500, two of which were occupied by deceased and his wife as a homestead. During the settlement of his estate in the probate court his widow made application, in pursuance of the statute, for an allowance for her support and maintenance. The heirs objected on the ground that the antenuptial contract was a bar to the allowance claimed by Mrs. Rieger. The probate court adjudged the agreement void, and ordered payment of the allowance as prayed. The district court, on appeal, affirmed the order of the probate court, and the heirs bring the case here for review.

The widow (appellee) contends that the order allowing support from her husband's estate is not appealable, citing Estate of James' v. O'Neill, 70 Neb. 132, 97 N.W. 22. This case does not support appellee's contention that an order allowing a widow an allowance is not subject to review. It was there held that an appeal would not lie from the district court to the supreme court in such matters; the proper remedy being a writ of error, which was not issued in that case. The O'Neill case did not declare the law to be that an order allowing the widow support from her husband's estate was not subject to review in any manner. We have not heretofore determined the question whether an order granting a widow an allowance is subject to review in the appellate courts. We are not now dealing with a mere temporary or interlocutory order. The court below granted the application of the widow, set aside the antenuptial contract, and allowed the full sum prayed for in her petition. This much of the estate of the deceased was distributed. We think such an order is a final order, and is appealable by virtue of section 42, ch. 20, Comp. St. 1907, which provides: "In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment, or decree of the county court to the district court by any person against whom any such order, judgment, or decree may be made or who may be affected thereby." The general rule seems to be that an appeal lies from the judgment of the probate court granting or refusing an allowance to the widow out of the estate of her deceased husband. 18 Cyc. 402, note 86; Dame, Probate and Administration, sec. 425. See, also, Forwood v. Forwood, 86 Ky. 114, 5 S.W. 361.

Appellee contends that the agreement is void and not a bar to dower, and, being void for this reason, is void in toto, and does not affect the widow's right to support during the settlement of the estate. If the agreement in judgment here does not bar dower, it follows, as we view it, that it does not intercept the widow's allowance, and we shall therefore examine the question whether the agreement is sufficient to bar dower of the appellee in the lands of her deceased husband. At common law the right of dower could not be waived or lost by an antenuptial agreement. Gibson v. Gibson, 15 Mass. 106, 8 Am. Dec. 94; Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34; Blackmon v. Blackmon, 16 Ala. 633; Gould v. Womack, 2 Ala. 83; Logan v. Phillips, 18 Mo. 22. Two reasons were assigned by the courts to support the common law rule: (1) The settlement being executed before marriage, the demand of dower had no existence, and no right can be barred before it accrues. (2) No right or title to a freehold estate can be barred by a collateral satisfaction. 14 Cyc. 939.

The antenuptial agreement being insufficient at common law to bar dower, the next inquiry is as to its validity under the following provisions of our decedent statute (Comp. St. 1897, ch. 23), in force at the time the agreement herein was made:

"Section 12. A married woman residing within this state may bar her right of dower in any estate conveyed by her husband, or by his guardian if he be a minor, by joining in a deed of conveyance, and acknowledging the same as prescribed by law, or by joining with her husband in a subsequent deed acknowledged in like manner.

"Section 13. A woman may also be barred of her dower in all the lands of her husband by a jointure settled on her, with her assent, before the marriage, provided such jointure consists of a freehold estate in lands for the life of the wife at least, to take effect, in possession or profit, immediately on the death of the husband.

"Section 14. Such assent shall be expressed, if the woman be of full age, by her becoming a party to the conveyance by which it is settled, and if she be under age, by her joining with her father or guardian in such conveyance.

"Section 15. Any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to as provided in the preceding section, bar her right of dower in all the lands of her husband.

"Section 16. If any such jointure or pecuniary provision be made before marriage, and without the assent of the intended wife, or if it be made after marriage, she shall make her election before the death of her husband, whether she will take such jointure or pecuniary provision, or be endowed of the lands of her husband; but she shall not be entitled to both.

"Section 17. If any lands be devised to a woman, or other provisions be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.

"Section 18. When a widow shall be entitled to an election under either of the two preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision, unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower."

The agreement before us does not fall within the provisions of our statute. No jointure was settled upon the wife. She received no freehold estate in the lands of her intended husband by virtue of the antenuptial contract. The agreement was not intended to operate as a legal jointure, and, under the statute, she was not barred of her dower. If the statutory method of barring dower is exclusive, the antenuptial contract herein is void. Fellers v Fellers, 54 Neb. 694, 74 N.W. 1077. We are of opinion, however, that the true rule is that such agreements are regulated by statute, and are void unless executed in accordance with the written law, except in equity, or, as stated by this court in Fellers v. Fellers, "in the...