Smith v. Farrington

• Decision Date: 17 November 1942
• Parties: SMITH et al. v. FARRINGTON.
• Court: Maine Supreme Court

29 A.2d 163

SMITH et al.

v. FARRINGTON.

Supreme Judicial Court of Maine.

Nov. 17, 1942.

Report from Supreme Judicial Court, Cumberland County, at Law; Sidney St. F. Thaxter, Justice.

Suit by Sarah Stearns Smith and others against William H. Farrington for specific performance of an alleged antenuptial agreement. The defendant filed a general demurrer. On report.

Bill sustained, and case remanded.

Before STURGIS, C. J, and THAXTER, HUDSON, MANSER, and MURCHIE, JJ.

Lauren M. Sanborn, of Portland, for plaintiff.

Edgar F. Corliss, of Bridgton, for defendant.

HUDSON, Justice.

On report. In this bill in equity the plaintiffs (executrix, devisees, and legatees under the will of Avis A. Farrington, deceased wife, of the defendant) seek specific performance of an alleged antenuptial agreement. The defendant filed a general demurrer which joined raises the issue whether the bill sets forth facts justifying relief in equity. Whitehouse Equity Practice, Sec. 331, page 363.

The facts alleged in the bill may be stated briefly. On December 16, 1931, the defendant, a widower, married Avis A. Stearns, a widow, each having living children by former marriages. Following their engagement but before marriage they made a verbal agreement providing that neither should share in nor partake of the estate of the other but that each should dispose of his or her respective estate by giving or devising the same to his or her respective children by former marriage or in such other manner as each party might see fit. On December 21, 1939, during coverture they signed a written agreement, executed before two witnesses and acknowledged before a notary public. In this it was stated:

"Whereas we, the parties hereto, prior to our marriage, verbally agreed that upon our respective deaths, neither should share in, nor partake of, the estate of the other, but that each should dispose of his or her respective estate by giving or devising the same to his or her respective children by a former marriage, or in such other manner as each party hereto might see fit; and whereas we are desirous of reducing our said agreement to writing that the same may be evidence of our said agreement," (meaning the verbal agreement before marriage) "now therefore:—quot; Then followed mutual releases in accordance with the verbal antenuptial agreement.

Mrs. Farrington predeceased her husband, who now refuses to abide by and carry out the terms of the antenuptial agreement. First he contends (and we think rightly) that the antenuptial agreement did not conform to the provisions of Sec. 8 of Chap. 74, R.S.1930, namely:

"* * * but a husband and wife, by a marriage settlement executed in presence of two witnesses before marriage, may determine what rights each shall have in the other's estate during the marriage, and after its dissolution by death, and may bar each other of all rights in their respective estates not so secured to them."

But this Court has held that that statute is not exclusive and that there may be valid antenuptial contracts independently of it which are enforceable in courts of equity. McAlpine v. McAlpine, 116 Me. 321, 101 A. 1021. This Court said on page 325 of 116 Me., on page 1022 of 101 A.:

"In nearly all the courts of this country where the validity of agreements similar to the agreement in this case has been passed upon, it has been held that the statute was not exclusive, but simply a statutory declaration that parties about to be married could by executing a contract as prescribed by statute bar the woman's interest in her husband's estate, and that statutes similar to ours do not deprive her of the power to bar her rights in her husband's estate by her antenuptial agreements. That the statute is but a declaration of the effects of the settlement in that class of cases."

In the McAlpine case, supra, distinction is drawn between actions at law and suits in equity where enforcement of the oral contract is sought. Thus, therein on page 325 of 116 Me., 101 A. on page 1022, were distinguished the decisions in Littlefield v. Paul, 69 Me. 527, Wentworth v. Wentworth, 69 Me. 247, and Pinkham v. Pinkham, 95 Me. 71, 49 A. 48, 85 Am.St.Rep. 392. The McAlpine case holds clearly that an antenuptial contract, where it is made without fraud or imposition and is not unconscionable, will be enforced in equity although it does not conform to the statute above-cited.

Here there is no pretence of any fraud or imposition in procuring the antenuptial contract. Their mutual promises were sufficient consideration. The terms of the contract were not unreasonable and both parties were competent to contract. The agreement was conscionable, fair, and proper, confirmed and abided by during the marriage, and now that death has taken one of the contracting parties, the wife, it would be most inequitable to permit the surviving husband to violate his contract.

"Almost any bona fide antenuptial contract made to secure the wife, either in the enjoyment of her own property or a portion of that of her husband, either during coverture or after his death, will be enforced in equity." Wentworth v. Wentworth, supra, 69 Me. on page 252.

"Such family arrangements, in many instances, reconcile differences and avoid unpleasant disputes. Where they are free from fraud, there is no reason why they should not be enforced." Tiernan v. Binns et al., Executors, 92 Pa. 248, 253.

Judge Cardozo said in De Cicco v. Schweizer et al, 221 N.Y. 431, 117 N.E. 807, on page 810, L.R.A.1918E, 1004, Ann. Cas.1918C, 816:

"The law favors marriage settlements, and seeks to uphold them. It puts them for many purposes in a class by themselves. * * * It has enforced them at times where consideration, if present at all, has been dependent upon doubtful inference. * * * It strains, if need be, to the uttermost the interpretation of equivocal words and conduct in the effort to hold men to the honorable fulfillment of engagements designed to influence in their deepest relations the lives of others."

Secondly, the defendant contends that the oral antenuptial agreement violates the statute of frauds. Our statute of frauds (see Sec. 1 of Chap. 123, R.S.1930) provides :

"No action shall be maintained in any of the following cases:

* * * * * *

"III. To charge any person upon an agreement made in consideration of marriage;

"IV. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them;

* * * * * *

"Unless the promise, contract, or agreement, on which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized; but the consideration thereof need not be expressed therein, and may be proved otherwise." (Italics ours.)

The defendant claims that this antenuptial agreement was in consideration of marriage and not being in writing is void. Whether this agreement was actually made in consideration of marriage we do not find it necessary to decide, since for the purpose of our consideration it will be assumed that it was. That being so, does the statute constitute a defense in this action? We think not. We regard the written agreement of December 21, 1939 an entirely sufficient memorandum or note to comply with the statute.

In the case of McAnulty v. McAnulty, 120 Ill. 26, 11 N.E. 397, 400, 60 Am.St.Rep. 552, relied upon by the defendant, there was no such provision as to a memorandum or note. T...