Strickland's Estate, In re, 36425

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before WHITE; CARTER
• Citation: 181 Neb. 478,149 N.W.2d 344
• Parties: In the Matter of the ESTATE of W. R. STRICKLAND, Deceased. Florence Lake STRICKLAND, Appellant, v. OMAHA NATIONAL BANK et al., Appellees.
• Docket Number: No. 36425,36425
• Decision Date: 10 March 1967

Page 344

149 N.W.2d 344 181 Neb. 478 In the Matter of the ESTATE of W. R. STRICKLAND, Deceased.
Florence Lake STRICKLAND, Appellant,
v.
OMAHA NATIONAL BANK et al., Appellees. No. 36425. Supreme Court of Nebraska. March 10, 1967.

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Syllabus by the Court

1. In a suit between a wife, as the surviving spouse to an antenuptial contract entered into by her and her deceased husband, and the legatees, devisees, or beneficiaries under the will of her deceased husband, the wife has a [181 Neb. 479] direct legal interest in the result of the action and is incompetent as a witness under the provisions of section 25--1202, R.R.S.1943.

2. Recitals contained in a contract are not strictly any part of its contractual provisions although they may be looked to in determining its proper construction or the intention of the parties. A recital may be varied or explained, but not so as to vary or defeat the instrument. As to such latter purpose, in the absence of efficient fraud, the person executing the contract is estopped from contradicting the recital.

3. An antenuptial contract is valid if the formalities of the statute are met and if it is fair and fairly made by persons legally qualified to contract.

4. The burden is upon the husband, or his representatives, to show that an antenuptial contract apparently unjust to the wife was fairly procured.

5. A court, when called upon to consider the validity of an antenuptial contract, should examine and construe the instrument in the light of the circumstances surrounding the particular case, and enforce or annul the agreement according to the facts disclosed.

6. Ordinarily the burden of proof to show the invalidity of an antenuptial contract is on the party alleging it, but if the contract is unjust and unreasonable to the prospective wife on its face, a presumption of fraud arises, the burden shifts, and it is incumbent on the husband, or his representatives, to prove the validity of the contract.

7. Due to the confidential relationship existing between prospective spouses, the courts scrutinize antenuptial contracts with care, the relationship being one of mutual trust and confidence.

8. While a disclosure by the prospective husband of his property should be full, fair, and open, a failure to divulge does not necessarily mean that the agreement will be condemned. The test of adequacy may still remain, and if it is met by a showing that it was fairly and honestly made under all the circumstances, the agreement may be enforced.

9. The basic issue where a complete disclosure is not made is fraud or overreaching, not the absence of disclosure.

10. Where there is no evidence of fraud, misrepresentation, or overreaching, and the terms of the contract and the surrounding circumstances indicate a mutual intent to preserve the prospective wife's property for her children by a former marriage, with indifference to acquiring any interest in [181 Neb. 480] the property of the prospective husband, the contract not appearing otherwise to be unfair or unconscionable, the contract will be enforced.

11. In the absence of fraud or overreaching, or of unfairness or unreasonableness of such a degree as to void the contract, a man and woman, anticipating marriage, are as free to enter into an antenuptial contract as any other contract.

12. A valid antenuptial agreement is not affected by a party thereto giving by a last will something out of his estate to the other party to the agreement; the agreement continues effective, and the bequest does nothing more than favor the devisee or legatee to the extent provided in the will. It does not amount to a waiver of the antenuptial agreement by the testator, nor give to the wife the right to elect under the statute in lieu of the provisions of the will.

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Harry H. Foulks, Jr., Omaha, for appellant.

Doerr & Doerr, Burbridge & Burbridge, Rickerson & Homan, Omaha, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is an appeal from a judgment of the district court for Douglas County denying the right of a widow by her election to take the share of her husband's estate as provided by law contrary to the provisions of her husband's will.

The plaintiff, Florence Lake Strickland, and Dr. W. R. Strickland, her deceased husband, were married in Omaha, Nebraska, on April 30, 1951. It was a second marriage by both parties. Florence had a daughter by a previous marriage. Dr. Strickland had no children. Each had property of his own at the time of the marriage. Dr. Strickland was 78 years of age and Florence was 61 at the time of the marriage. They lived together until Dr. Strickland's death on October 10, 1962.

On April 27, 1951, 3 days before their marriage, the [181 Neb. 481] parties entered into an antenuptial agreement by which each was to retain his own property free of any rights of the other as if a marriage were not entered into. On August 18, 1958, Dr. Strickland executed a last will and testament which was admitted to probate on November 7, 1962. On March 28, 1963, Florence filed in the county court of Douglas County an election to take under the statute rather than under her deceased husband's will.

It is the contention of the defendants that the antenuptial contract bars her right to elect under the statute. Florence asserts that the antenuptial contract is void in that Dr. Strickland did not, prior to and at the time the contract was signed, apprise her of the extent and value of his property. She also asserts that if the contract was ever binding, it was abrogated by the will of Dr. Strickland executed subsequent to the making of the antenuptial agreement.

The antenuptial agreement may be summarized as follows: Whereas a marriage is intended to be solemnized between the parties and the legal relations as to their respective properties may be different than they desire because of said marriage, and whereas the second party is the mother of a daughter by a previous marriage whom both parties desire should be protected against loss of her anticipated inheritance from her mother that would occur because of the marriage, they entered into the agreement. Thereafter each of the parties listed the properties they owned. The contract then states that the first party, Dr. Strickland, has seen or inspected and is familiar with all the real estate and has his opinion as to its value. It then states that the second party, Florence, has no personal property. The contract then states the intention of the parties to be that each would continue to own separately all property that each now owns, whether owned by either at the commencement of the marriage, or thereafter acquired, or coming to them during the marriage, as if the said proposed marriage had never been celebrated. Each party then agrees [181 Neb. 482] and covenants to and with each other that, upon the death of either, the survivor shall not have and will not assert any claim, interest, estate, or title under the laws of any state, because of such survivorship in or to any property of the other and each waives all rights of dower and distributive interest which either would have in the property of the other and each likewise relinquishes to the heirs, administrators, executors, and assigns of the deceased any and all of his or her claims, distributive share, interest, estate, or title that he or she would otherwise be entitled to as the surviving husband or wife. The last paragraph of the contract provided: 'To the full and proper performance of all of the foregoing agreements, covenants, and stipulations, the parties hereto respectively

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bind themselves, their heirs, executors, administrators, and assigns.'

It is the contention of Florence that the antenuptial contract is void for the reason that Dr. Strickland failed to apprise her of the value of his property before the contract was entered into and that such failure, in effect, amounted to a fraud upon her sufficient to invalidate the contract. On the trial Florence attempted to testify that she had not seen or inspected Dr. Strickland's property before signing the antenuptial contract as stated in the antenuptial agreement. She offered, also, to testify that she did not know the amounts of money on deposit in building and loan associations in the city of Omaha, mentioned in the agreement, or how many building and loan associations were involved. She likewise offered to testify that the contract was prepared by Dr. Strickland's attorney, that she had not seen a copy of the contract prior to its signing, and that it was not read to her at the time of signing on April 27, 1951. She likewise offered to testify that she did not know that Dr. Strickland owned the property listed in the contract as belonging to him, and that she was advised by no one as to its value. Objections were made to this evidence by all defendants on the ground that the evidence was in [181 Neb. 483] violation of the parol evidence rule and incompetent under the dead man's statute, section 25--1202, R.R.S.1943. The objections were sustained by the court and offers of proof were made and overruled. These rulings are asserted as error in this appeal.

Section 25--1202, R.R.S.1943, which we shall hereafter refer to as the dead man's statute, provides in part: 'No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, * * *.'

The general purpose of the statute is primarily to protect the estates of decedents from fraudulent and fictitious claims, and the strict construction of the statute adopted by our court does not encompass any situation where the witness has no direct legal interest in the result of the action. It does not contemplate a proceeding...