Talley v. Harris

• Decision Date: 01 July 1947
• Docket Number: 32109.
• Parties: TALLEY v. HARRIS.
• Court: Oklahoma Supreme Court

182 P.2d 765

199 Okla. 47, 1947 OK 218

TALLEY v. HARRIS.

No. 32109.

Supreme Court of Oklahoma

July 1, 1947

Appeal from District Court, Murray County; J. I. Goins, Judge.

Petition by Lula Talley that E. M. Harris, as executor of the last will and testament of T. F. Talley, deceased, be required to file final account for the determination of heirship and for distribution of the decedent's estate to petitioner as the sole and only heir of the decedent and that the petitioner be granted a widow's allowance. From a judgment of the district court affirming judgment of the county court denying the petition, the petitioner appeals.

Judgment affirmed.

Syllabus by the Court.

1. An antenuptial contract entered into between a man and woman in contemplation of their marriage that is just and reasonable will be upheld by the courts.

2. Every statute should have a reasonable, sensible construction in preference to one which renders it, or a substantial part of it, useless and deleterious.

3. The court in construing a statute may re-arrange and transpose the various clauses thereof, if necessary so to do in order to arrive at the intent of the legislature as expressed in the statute.

4. A judgment of the district court, affirming on appeal a judgment of the county court denying an application for widow's allowance for the reason that she was not entitled to such allowance by reason of the antenuptial agreement, not appealed from, is a final judgment and is binding and conclusive on all parties, and the surviving widow of deceased is estopped by such judgment from renewing such application in a proceeding for distribution of the estate.

Cornelius Hardy, of Tishomingo, for plaintiff in error.

Pryor & Wallace, of Wewoka, for defendant in error.

PER CURIAM.

This is an appeal by Lula Talley, widow of T. F. Talley, deceased from a judgment of the district court of Murray County affirming on appeal an order of the county court denying her application for a widow's allowance and application to distribute to her the entire estate of the deceased as his sole and only heir. We will hereafter refer to the widow Lula Talley as appellant.

The parties were married in February, 1938. Prior to their marriage and on the 11th day of January, 1938, the parties entered into and executed in writing an antenuptial agreement. This agreement, after reciting that marriage was contemplated, provided that in view and consideration of such proposed marriage the parties mutually agree and covenant that all property belonging to either of them at the commencement of the marriage or coming to or acquired by them subsequent thereto should remain their separate property and either of the parties could dispose of such separate property to the same extent as though they were unmarried. The contract then provides:

'It is further understood and agreed that, whereas, T. F Talley is a man past seventy (70) years of age and Lula Whittaker is a lady who has been previously married and past fifty (50) years of age, and both owning property of their own, in their own right and each having blood relation who at their death will become their heirs, it is the intention of this agreement that upon the death of either party, the survivor shall have no interest whatever in the property of decedent and all rights given the survivor under the law, is hereby waived, and said property shall descend to the heirs of the decedent the same as if the marriage between the parties hereto had never taken place.'

After the execution of this agreement and on June 6, 1938, deceased executed a will whereby he devised and bequeathed his entire estate to his nieces and nephews, ten in number. The will contains the following provision:

'It is my will that my present wife take nothing, and have nothing whatever to do with my property, which I own at the time of my death, for the reason that there exists between us an antenuptial or prenuptial marriage settlement, by the terms of which it was agreed that each should keep their property of which either might die seized and possessed, without the right of the other to inherit; I having heretofore given to my wife, property sufficient to be in lieu of any inheritable right she might have under the law. Said contract being reduced to writing, signed, executed and delivered, just prior to our marriage; the terms and conditions of which I hereby invoke in this my last will and testament, and ask that the same be enforced.'

On October 14, 1938, T. F. Talley died and his will was presented for probate by E. M. Harris who was designated as executor under the terms of the will. On October 26, 1938, appellant filed in the county court her election renouncing the will and electing to take as an heir under the law of succession and filed a contest against probate of the will. The county court upon hearing of the contest and application to probate admitted the same to probate and its order and judgment was affirmed by the district court on appeal. Appellant at the same time also filed and presented an application for widow's allowance which application was denied by the county court. It was apparently denied on the theory that appellant had waived any right to such allowance by having executed the antenuptial agreement. The judgment denying the allowance was appealed by appellant to the district court where upon trial and hearing de novo that court affirmed the judgment of the county court. No appeal has been taken from this judgment. On the 30th day of June, 1944, appellant presented an application to the county court requiring the executor to file final account for determination of heirship and for distribution of the entire estate to her as the sole and only heir of deceased. In her application and petition for distribution she alleged that she had renounced the will and elected to take under the law as a forced heir; that she was the sole and only heir of deceased and prayed that the entire estate be distributed to her. Appellant at the same time also filed and presented to the county court a new application for widow's allowance. The executor responded to both applications. In the response to the application for determination of heirship and for distribution of the estate he filed his final account, pleaded the antenuptial agreement in bar of appellant's claim as an heir of deceased and prayed that the estate be distributed to the devisees and legatees mentioned in the will.

In response to the application for widow's allowance he pleaded the former judgment of the county court denying such allowance and the judgment of the district court affirming such judgment on appeal as an estoppel. He alleges that such judgment of the district court was not appealed from and that the same became a final judgment and is now conclusive and binding upon appellant and that she is estopped by such judgment from again presenting the question in this proceeding. The county court after due hearing denied both applications and entered judgment distributing the estate to the devisees and legatees as mentioned in the will. Appellant appealed from such judgments of the county court to the district court where upon hearing de novo the judgments of the county court were affirmed. The appellant has appealed from these judgments to this court.

It is the contention of the executor that the antenuptial agreement entered into between the parties is a valid and binding agreement and precludes appellant from taking as an heir of deceased. It is the contention of appellant that such agreement is invalid to the extent that it purports to preclude her from taking as an heir of deceased such portion of the estate less in value than she would be entitled to take under the law of succession. In support of this contention she relies on 84 O.S. 1941 § 44. This section provides:

'Every estate in property may be disposed of by will; provided however, that a will shall be subservient to any antenuptial marriage contract in writing; but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one half thereof in value to the surviving spouse; provided further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.'

It is argued by appellant that the word 'but' appearing in the above section immediately following the clause referring to antenuptial agreements, qualifies and restricts that clause and although antenuptial contracts referred to therein are recognized as valid, one spouse cannot by reason of the following restrictive clause bequeath or devise away from the other so much of his or her estate that the other spouse would receive less in value than would be obtained through succession by law. Appellant asserts that a limited or restrictive clause contained in the statute is generally construed to refer to and limit and restrict the immediately preceding clause or last antecedent, and if so construed the...