Rowell v. Barber

• Decision Date: 05 April 1910
• Citation: 142 Wis. 304,125 N.W. 937
• Parties: ROWELL v. BARBER.
• Court: Wisconsin Supreme Court

142 Wis. 304

125 N.W. 937

ROWELL

v.BARBER.

Supreme Court of Wisconsin.

April 5, 1910.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by Mary Rowell against Bert S. Barber, executor of the estate of John S. Rowell, deceased. Defendant had judgment, and plaintiff appeals. Reversed.

On July 4, 1888, the plaintiff and one John S. Rowell were married. Afterwards and on the 19th day of April, 1892, the plaintiff and said Rowell entered into a contract in writing reciting therein that prior to their marriage they had made an oral antenuptial contract and setting forth said contract in the writing made and signed after their marriage. This contract set out in great detail all the alleged provisions of the oral antenuptial agreement and made the same a part of the agreement so made after marriage, which contract in writing was signed and sealed by said John S. Rowell and Mary Rowell on the 19th day of April, 1892, in the presence of two witnesses and acknowledged before a notary public. John S. Rowell died testate October 21, 1907, and recited in his will the antenuptial contract. The plaintiff duly filed her election October 10, 1908, to take the provision made for her by law instead of the provision made for her by will or the marriage settlement. Objections to said election were filed by the executor of the will of John S. Rowell, and such executor prayed that a hearing be had of the issues raised by the election and the objections thereto. The time and place of hearing were fixed and the issues heard in the county court and determined against the plaintiff. An appeal was taken and a trial had in the circuit court for Dodge county upon the issues raised by the election and objections thereto, and the circuit court affirmed the judgment of the county court and adjudged that the plaintiff was entitled to take only the provisions made for her by the agreement of April 19, 1892, and the provisions made for her in the last will and testament of John S. Rowell, deceased, and no other part or share in his estate; and further adjudged that the plaintiff was not guilty of laches in the matter of filing her election, and that the written agreement made on the 19th day of April, 1892, is a valid antenuptial agreement and binding upon the plaintiff. The plaintiff appealed from said judgment to this court.Geo. B. Swan (R. B. Kirkland, of counsel), for appellant.

Burke & Lueck, for respondent.

KERWIN, J. (after stating the facts as above).

The facts in this case are substantially undisputed. The first and important question presented is whether the so-called antenuptial contract is void. There is no dispute but that it was orally made before marriage and reduced to writing, signed, sealed, and acknowledged after marriage. The contract purports to have been made in consideration of marriage, and the first question arises as to whether it is void under subdivision 3 of section 2307, St. 1898, which provides that every agreement, promise, or undertaking made upon consideration of marriage except mutual promises to marry shall be void unless the agreement or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party charged therewith. It is insisted by the appellant that an oral antenuptial contract is void under the statute referred to and cannot be validated by reducing it to writing and signing after marriage. This proposition is denied by respondent. The question is not free from difficulty. Nor are the authorities in the courts of last resort in the different jurisdictions in harmony. The precise question appears never to have been passed upon by this court. Some point is made by respondent that there is a sufficient lawful consideration to support the contract independent of any consideration of marriage. But we shall spend no time in discussing this proposition, because from the four corners of the instrument we think it is clear that the consideration for the agreement was the promise by the plaintiff to marry John S. Rowell, deceased, which agreement could only be consummated and made valid, if at all, by the marriage. The contract recites: “Whereas, the above-named John S. Rowell, and the above-named Mary Rowell, now the wife of said John S. Rowell, then Mary Schiller and unmarried, having agreed to marry, and intending so to do, made an agreement as follows.” Then follows the terms of the agreement, and provides that “on account of such intended marriage, and on account of the promises and agreements hereinbefore mentioned and hereinafter stated,” certain described real estate is agreed to be settled upon plaintiff. Other provisions of the agreement show that it was made in consideration of marriage by providing that such provisions were made “on account of such intended marriage” and “by reason of such marriage of said parties.” It is therefore considered that the oral agreement made before marriage was made in consideration of marriage. Mallory's Adm'rs v. Mallory's Adm'r, 92 Ky. 316, 17 S. W. 737;Henry et al. v. Henry, 27 Ohio St. 121. So we approach the question whether such oral agreement entered into before marriage by being reduced to writing and signed after marriage became a valid antenuptial contract. The obvious purpose of the written contract made after marriage, reciting the oral agreement made before marriage, was to remove from within the ban of the statute such oral agreement. It is plain that the written agreement relied upon as an antenuptial contract could have no force as such but for the oral agreement made before marriage. It seems equally clear under our statute that the oral agreement was absolutely void. How a void agreement which has no vitality whatever can be brought into force and vigor by another agreement made by the parties after they are disqualified to make the one which is void is not easy to understand. If this can be done, it is an easy way of avoiding the statute. If our statute were similar to the English statute of frauds and the statutes of the majority of the states which follow either literally or in substance the English statute, the proposition would be quite different. The English statute and those of most of the other states of the Union, except Wisconsin and New York, do not make the contract void, but provide that “no action shall be brought * * * to charge any person upon any agreement made upon consideration of marriage.” St. 29 Car. II, c. 3 (A. D. 1676) § 4. Or that “no action shall be brought in any of the following cases: * * * Third. To charge any person upon any agreement or promise made in consideration of marriage.” Burns' Rev. St. Ind. 1901, § 6629 (4909). Or “Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or his authorized agent: * * * (2) Those made in consideration of marriage.” Iowa State Code 1897, § 4625.

It will be seen from the foregoing, as well as the statutes of other states, which might be cited, that there is a broad difference between our statutes and the statutes of most of the other states. This difference is vital, as was pointed out at an early day by this court. Brandeis v. Neustadtl, 13 Wis. 142. Under our statute the contract is made void, while under the other statutes referred to the remedy is suspended, or they make the evidence of such a contract incompetent. So there would be much reason in holding under the latter statutes that, the contract being good at common law, though not in writing, and the statute operating upon the remedy only or the character of the evidence necessary to establish such a contract, the evidence might be supplied by the parties after the making of the contract which, though not void, was unenforceable for want of proper evidence. There is a very full discussion of the question by Chief Justice Dixon in Brandeis v. Neustadtl, supra, and the question has been several times considered by this court in later opinions. Langley et al. v. Sanborn, 135 Wis. 178, 114 N. W. 787, and cases cited; Popp v. Swanke et al., 68 Wis. 364, 31 N. W. 916.

In Brandeis v. Neustadtl, supra, the court said, at page 149 of 13 Wis.: “A contract declared void by statute is in all respects a nullity. It cannot for any purpose be considered as ever having had a being or existence.” This being so, it is difficult to see how the oral antenuptial contract, void by the express provisions of the statute, could be converted into a valid antenuptial contract by a postnuptial agreement. Such a construction of the law would defeat the purpose of the statute.

In Crane v. Gough, 4 Md. 332, the distinction is drawn between statutes which declare the contract void if not made in compliance with the statute of frauds, and those which provide that no action shall be brought upon it. It is true that in Iowa and Indiana it has been held that if, after making an oral antenuptial agreement, the parties after marriage reduce it to writing and in the writing recognize, put in force, and give effect to the prior oral agreement, the written contract will be given effect as an antenuptial contract though signed after marriage. But, as we have seen, the statutes of Iowa and Indiana on this subject are quite different from our own in the essential particular that they do not make the antenuptial oral agreement void, and we think the cases cited from Iowa and Indiana may be distinguished on that ground, if upon no other. Kohl v. Frederick et al., 115 Iowa, 517, 88 N. W. 1055;Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328;Frazer et al. v. Andrews et al., 134 Iowa, 621, 112 N. W. 92, 11 L. R. A. (N. S.) 593. However, in Illinois, where the statute is practically the same as the English statute of frauds (Starr & Curtis' Annotated Statutes [2d Ed.] 1896, c. 59, p. 1990), it was held that a verbal antenuptial agreement entered into, signed, and executed after...