Rockwell v. Rockwell's Estate

• Decision Date: 24 June 1970
• Docket Number: No. 3,Docket No. 7261,3
• Citation: 24 Mich.App. 593,180 N.W.2d 498
• Parties: Myrtle M. ROCKWELL, Plaintiff-Appellant, v. ESTATE of Leon A. ROCKWELL, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 498

180 N.W.2d 498

24 Mich.App. 593

Myrtle M. ROCKWELL, Plaintiff-Appellant, v. ESTATE of Leon A. ROCKWELL, Defendant-Appellee.

Docket No. 7261.

Court of Appeals of Michigan, Division No. 3.

June 24, 1970.

Released for Publication Oct. 29, 1970.

Leave to Appeal Denied Dec. 31, 1970.

John B. Daugherty, Beulah, Norman K. Kravitz, Grand Rapids, for plaintiff-appellant.

John E. Hart, Manistee, for defendant-appellee.

Before HOLBROOK, P.J., and BRONSON and BROWN, ^* JJ.

BRONSON, Judge.

Leon Rockwell and Myrtle Rockwell were married on April 25, 1947. Leon and Myrtle each had children by previous marriages. On February 4, 1957 the couple executed a post-nuptial contract in which each agreed not to claim any part of the other's estate. Plaintiff expressly relinquished 'all claim to any allowance, dower, homestead, or any other right in and to the real or personal estate' of Leon Rockwell. The intention of the parties to the contract was that their marriage should not alter the legal rights of their children from their prior marriages in the real and personal property of each of them. The agreement provided that each of their estates would rest in the heirs as determined by will or as if no marriage had taken place. On January 18, 1965, Leon Rockwell published a will bequeathing to plaintiff an amount less than that to which she would be entitled under an election. Two years later Leon Rockwell died. On July 3, 1967, plaintiff filed in the Benzie County Probate Court her election to take against the will pursuant to M.C.L.A. § 702.69 (Stat.Ann.1962 Rev. § 27.3178(139)). On January 8, 1968, plaintiff filed with the probate court a petition for a widow's allowance. The estate filed objections to the petition. On March 29, 1968, the probate court dismissed plaintiff's petition for widow's allowance, struck her election, and held the post-nuptial agreement valid. Contending that the agreement was invalid for lack of consideration and because it was contrary to public policy, plaintiff sought review in the Circuit Court for Benzie County. The circuit court affirmed the probate court's holding, and leave to appeal was granted by this Court on May 29, 1969.

On appeal, plaintiff raises two issues:

1. Whether a post-nuptial contract is invalid because contrary to public policy.

2. Whether a post-nuptial contract fails for lack of consideration when the husband only waives any claim in the future estate of his wife should he be the survivor.

I.

Post-nuptial agreements are not invalid Per se. In the majority of jurisdictions, including Michigan, a post-nuptial agreement by a wife to release her interest in her husband's property on his death is valid if it is fair and equitable and supported by sufficient legal consideration. 49 A.L.R. 116, 122, citing Randall v. Randall (1877) 37 Mich. 563; Rhoades v. Davis (1883), 51 Mich. 306, 16 N.W. 659; Owen v. Yale (1889), 75 Mich. 256, 42 N.W. 817; Wright v. Wright (1890), 79 Mich. 527, 44 N.W. 944; Dakin v. Dakin (1893), 97 Mich. 284, 56 N.W. 562; Chittock v. Chittock (1894), 101 Mich. 367, 59 N.W. 655; Bechtel v. Barton (1907), 147 Mich. 318, 110 N.W. 935; LaPlant v. Lester (1907), 150 Mich. 336, 113 N.W. 1115. See, also, Constitution of 1963, article 10, section 1; M.C.L.A. § 558.13 (Stat.Ann.1957 Rev. §§ 26.229); M & D Robinson Co. v. Dunitz (1968), 12 Mich.App. 5, 162 N.W.2d 318.

There are several situations in which Michigan law recognizes the validity of agreements such as the one involved in the instant case. Post-nuptial agreements made during an existing separation are thought to further judicial policy favoring settlement of controversies over litigation. In re Berner's Estate (1922), 217 Mich. 612, 187 N.W. 377. In addition, Michigan is one of the majority of jurisdictions that approve post-nuptial agreements in which a wife releases her interest in her husband's property on his death (see Const.1963, art. 10, § 1, and M.C.L.A. § 558.13 (Stat.Ann.1957 Rev. § 26.229)), if it is a fair and voluntary one for a fair consideration. Wright v. Wright, Supra. See, also, 49 A.L.R. 116, 122. However, objections are validly raised to post-nuptial agreements where those agreements seek to effectuate a separation or contemplate a future separation. In re Berner's Estate, Supra, at 620, 187 N.W. 377. Plaintiff contends, citing language from Day v. Chamberlain (1923) 223 Mich. 278, 193 N.W. 824, that the present case is within this latter category. Day, however, is distinguishable in that the preamble of the agreement held invalid in Day made it clear that the parties contemplated a separation in the near future. The present case involves no thought of such a separation. ¹

The public policy objection to post-nuptial contracts pointed out by the Court in Randall v. Randall (see footnote ¹ Supra) and raised by plaintiff here does not arise in this case. The instant agreement did not undertake to provide for a separation. There is nothing in this record to suggest that the agreement was calculated to bring about a separation. Nor is there anything in this record to suggest that a separation was contemplated by the parties. To the contrary is the statement in the agreed facts that 'at all times during this marriage * * * the parties lived together amicably and peaceably without dispute or controversy.' The fact is that the parties lived as husband and wife for 10 years after the agreement was executed and until the husband's death.

The circuit court rejected plaintiff's argument that the agreement encouraged possible separation: 'No authority is cited indicating that a post-nuptial contract is inherently disruptive of the marital state and hence suspect.' In Ransford v. Yens (1965), 374 Mich. 110, 132 N.W.2d 150, the justices of the Michigan Supreme Court voting for affirmance, in particularly applicable language, said:

'* * * (T)he parties now before this Court entered into said agreement with the hopes that the marital journey they had commenced as rather elderly people would continue on without discord if they eliminated the only dispute or problem they faced, namely: The eventual disposition of property owned severally at the time of marriage as well as that acquired jointly during the marriage.' 374 Mich. at 116, 132 N.W.2d at 153.

The absence of intention of the parties to separate was determinative in Ransford v. Yens, Supra, which affirmed, by an equally divided court, the circuit court's validation of a post-nuptial agreement by which the parties relinquished for sufficient legal consideration their claims to the other's separate estates. Four justices affirmed in Ransford, finding that the intention of the parties was to provide for the eventual amicable disposition of their property. The holding for affirmance was made in spite of two provisions of the agreement which looked to the possibility of a divorce. ²

The instant agreement does not contain any reference to separation found offensive in Ransford. Indeed, it was entered into for a purpose found salutary in Ransford, namely, to provide for disposition of property favoring the children by previous marriages of the parties.

II.

It is plaintiff's contention that the post-nuptial contract lacked sufficient consideration in that the husband's promise to relinquish any right in his wife's estate even in exchange for the wife's promise to relinquish her dower and widow's allowance amounted to nothing since he had no such right. The circuit court thought the mutual promises of the parties contained in the agreement constituted adequate consideration for the contracts, citing for this proposition Keller v. Keller (1926), 121 Kan. 520, 247 P. 433. The trial court on the basis of Keller felt that since neither of the parties had executed wills at the time of the agreement, each was waiving a share in the estate of the other to which he or she would have been entitled under the laws of intestate succession. Plaintiff argues that if such an analysis is followed, each party gave up only a possibility and not a present interest amounting to consideration. ³

Michigan cases have discussed consideration in post-nuptial contracts in terms of dollar valuation and the Michigan Supreme Court has approved agreements where dollar amounts or an equivalent flowed to the wife in return for her release. Thus, in Randall v. Randall (1877), 37 Mich. 563, $1,000 was 'sufficient', and in Rhoades v. Davis (1883), 51 Mich. 306, 16 N.W. 659, $900 was 'good' consideration. In the more recent Ransford case, $4,600 was acceptable for release as to property worth $6,000 at the husband's death. In Wright v. Wright, Supra, the Michigan Supreme Court said, 'there is no legal objection to an arrangement between husband and wife, for a fair consideration, to extinguish her right of dower.' Plaintiff makes a strong case by relying on the decision in Wright. She gave up her prospective dower, allowing her husband to make a will giving her nothing in return for a waiver by her husband of his curtesy right, one not recognized by Michigan law. In return for a waiver of nothing more than an expectation, plaintiff argues, of a possible future inheritance by intestacy, the wife relinquished a statutorily defined and protected right. It is plaintiff's contention that the post-nuptial contract in the present case attempts to achieve that result which was overturned in Wright.

Under the facts as found in the present case, we must hold for the Estate of Leon Rockwell. In so doing we do not mean to overturn the line of case precedent cited Supra. However, what we find here is that there was 'fair consideration' flowing to plaintiff. Myrtle and Leon Rockwell each came to their marriage with children by previous marriages. It was their intention by enacting a post-nuptial agreement to insure the sanctity of their estates for their own children by those previous marriages. While it is true that Leon Rockwell gave up merely an expectancy, it is also true...