Rocker v. Rocker

• Decision Date: 22 December 1967
• Docket Number: No. 707538,707538
• Citation: 13 Ohio Misc. 199,232 N.E.2d 445
• Parties: , 42 O.O.2d 184, 42 O.O.2d 241 Daniel E. ROCKER, Plaintiff, v. Manual M. ROCKER, Co-Executor of the Estate of Henry A. Rocker, deceased et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 199

13 Ohio Misc. 199

232 N.E.2d 445, 42 O.O.2d 184, 42 O.O.2d 241

Daniel E. ROCKER, Plaintiff, v. Manual M. ROCKER, Co-Executor of the Estate of Henry A. Rocker, deceased et al., Defendants.

No. 707538.

Probate Court of Cuyahoga County, Ohio.

Dec. 22, 1967.

Morley, Stickle, Keeley & Murphy, Cleveland, for plaintiff Paula B. rocker.

Reddy, Gygli & Rocker, Cleveland, for defendants Manuel M. Rocker and Elmer Rocker, co-executors of the estate of Henry A. Rocker, deceased.

Rippner, Schwartz, Carlin & Weiss, Cleveland, for defendants Manuel M. Rocker, Elmer Rocker, Frances R. Arnstine, and Daniel E. Rocker, individually.

Report and Opinion of Referee

ANDREWS, Chief Referee.

This case concerns the validity of an antenuptial agreement entered into on February 8, 1960, by the late Henry A. Rocker and his then intended wife, Pauline (or Paula) Newman Rosenblatt. They were married on February 13, 1960. It was the second marriage for each of them. Henry Rocker had been married to his first wife for over forty-six years. She died on June 4, 1954, at the age of sixty-six.

Paula's previous marriage to Isadore Rosenblatt terminated in divorce in 1949.

Henry A. Rocker died on December 29, 1966. He was survived by Paula and by the four children of his first marriage, three sons and a daughter. Paula had no children.

Henry Rocker's will was admitted to probate in this Court on January 29, 1967, and on the same date two of his sons, Manuel M. Rocker and Elmer Rocker, were appointed co-executors under his will.

On April 25, 1967, pursuant to the terms of the antenuptial agreement, Manuel M Rocker tendered $10,000.00 to Paula Rocker, on condition that she elect to take under the will of Henry Rocker, which contained no provision for her. She refused the tender, and on June 14, 1967, elected to take against the will.

A few days previously, inasmuch as Paula Rocker had challenged the validity of the antenuptial agreement, Daniel E. Rocker, one of Henry Rocker's sons and a legatee under his will, had brought an action for a declaratory judgment, asking this Court to determine the validity of the agreement.

On June 14, 1967, Paula Rocker filed an answer and cross-petition asking that the antenuptial agreement be declared invalid and set aside, and that she be restored to her rights as surviving spouse of the decedent, Henry Rocker.

Subsequently, the plaintiff withdrew his petition, and, in effect, Paula Rocker, by reason of her cross-petition, is now the plaintiff, and the co-executors of Henry Rocker's estate, plus his four children individually, are, in effect, the defendants. For simplicity, I will refer tot he parties in that manner.

In substance the cross-petition alleges that before their marriage, the decedent, a practicing attorney for many years, in whom she reposed confidence and trust, persuaded and induced her to sign an agreement which provided that upon his prior death she was to receive $10,000.00, and no more, from his estate.

Plaintiff alleges, further, that the decedent concealed material facts from her with respect to the nature, extent, and value of his property and assets, in that he did not state the value of the stocks listed in the antenuptial agreement. She then alleges that in the appraisement approved by the Probate Court, the stocks were valued at $126,382.48, and that the appraisement shows less stock of the same kind than the amount listed in the schedule attached to the antenuptial agreement.

Plaintiff than alleges that the only other substantial asset of the estate consists of cash and bonds in the amount of $70,071.78, which, she says, is listed in the antenuptial agreement as approximately $30,000.00; and that the total assets of the estate, as appraised, amount to $196,659.36.

It is further allegee that plaintiff was ignorant 'at said time' of the value of the stocks listed in the agreement, and relied upon the decedent to make full, fair, and truthful disclosure thereof, and had he done so, she would not have signed the agreement.

Finally, plaintiff states that the terms of the agreement are unjust and unfair to her, and that the provisions made for her are inadequate, disproportionate, and substantially less than she would receive under the statute of descent and distribution, which, she claims, would be $69,219.77.

Issue was joined upon all the major allegations.

As previously mentioned, the antenuptial agreement was entered into on February 8, 1960. Henry A. Rocker is designated as the 'First Party,' and Pauline Newman Rosenblatt (also known as Paula Blatt) is designated as the 'Second Party.'

The preamble of the agreement reads as follows:

'WHEREAS, both of the parties contemplate entering into a marriage relation with each other, and both are severally possessed of property in his and her own right, and it is desired by the parties that their marriage shall not in any way change their legal rights in the property of each of them from what they are before marriage; and

'WHEREAS, the said First Party has made full and complete disclosure of all his property, both real and personal, of every nature, kind and description;

'NOW THEREFORE, it is agreed by and between the parties, as follows:'

By Item 1 of the agreement, Henry Rocker agrees that in case he survives Paula, 'he will make no claim to any part of her estate as surviving husband.'

By Item 2, in consideration of the marriage, he waives all right of dower to any real estate of which Paula may die seized, 'and all right to her personal estate as surviving husband, heir at law, or otherwise.'

Item 3 provides that if Paula survives Henry as his widow, she shall receive from his executors $5,000.00 if Henry dies within two years of the marriage, and $10,000.00 if he should die after two years of the marriage. As we know, he did not die until almost seven years after the marriage.

Item 4 reads as follows:

'It is understood and agreed that said First Party shall be entirely free in the management of his estate, and shall have the right to dispose of any part thereof without requiring the consent of the said Second Party.'

Item 5 stipulates that the provisions made for Paula shall be free from inheritance, estate, and similar taxes, which shall be the obligation of Henry's estate.

The gist of Item 6 is that the provisions made for Paula shall be in full payment and discharge of all claims she might have, as the widow or heir at law, to a distributive share of Henry's estate, and to all statutory rights she might have as his widow.

Consistently therewith, Paula agrees by Item 7 that in consideration of the marriage, if she survives Henry, she will make no claim to any part of his estate other than as provided in the agreement; and she expressly waives and relinquishes all claims of dower, homestead, year's allowance, or any other rights in his property to which she would be entitled by law.

Item 8 declares the following:

'It is mutually declared that it is their intention by virtue of said marriage, that neither one shall have or acquire any right, title or claim in and to the real and personal estate of the other, but that the estate of each shall descend to or vest in his or her heirs at law, legatees or devises, as may be prescribed by his or her last will and testament, or by the laws of the State then in force, as though no marriage had ever taken place between them.'

By Item 9 it is mutually agreed that if either of the parties desires 'to mortgage or sell and convey his or her real or personal estate, each one will join in the deed of conveyance or mortgage, as may be necessary to make the same effectual.'

Item 10 states:

'It is further agreed that this agreement is entered into by each party with full knowledge on the part of each as to the extent and probable value of the estate of the other and it is their desire that their respective rights to each others (sic.) estate shall be determined and fixed by this agreement, which shall be binding upon their respective heirs and legal representatives.'

The agreement was signed by the parties in duplicate in the presence of two witnesses, Ralph J. Simon and Manuel M. Rocker, who affixed their signatures thereto as witnesses. Mr. Simon was a deputy clerk and referee of this Court at the time, and the signing took place at the Court.

The signatures of Henry A. Rocker and Pauline Newman Rosenblatt (also known as Paula Blatt) were acknowledged before Manuel M. Rocker, a notary public. In her acknowledgment, Pauline acknowledged 'that she did execute the foregoing instrument, and that the same is her free and and deed.'

Attached to, and as part of, the antenuptial agreement was a schedule of the assets of Henry A. Rocker as of February 1, 1960. The first division of the schedule was headed:

'STOCK IN THE FOLLOWING CORPORATIONS:-'

and showed the following. (For the sake of simplicity, I will omit quotation marks.)

3560 shares-Lester Engineering Company (which it is my intention to distribute to my children during my lifetime.)

27 1/2 shares-Atlas Bolt & Screw Co.

91 shares (common), 29 shares (preferred)-Century Products, Inc.

101 shares Fulton Investment, Inc.

20 shares-Hoover Ball & Bearing Co.

American Standard Radiator Co.

14 1/6 shares-Falls Theatre Co.

116 2/3 shares-Cuyahoga Falls Amusement Co.

20 shares White Sewing Machine Co.

10 shares Vinrock, Inc.

The second division of the schedule listed the bonds and cash in banks, as follows:

Debentures in the face amount of $1,000.00-Lester Engineering Co.

Israeli Bonds-$1,000.00

Ohio Loan & Discount Co.-bond $1,000.00

U. S. savings bonds-approximate value-$5,000.00

Cash in banks-fluctuating amounts-at present about $30,000.00

The third and last division of the schedule related to Henry Rocker's life insurance in the aggregate face amount of $35,666.00. The companies wee listed, and the cash surrender value as of February 1, 1960, was given as approximately $25,745.00. It was stated that the...