Tilton v. Tilton

• Decision Date: 11 November 1908
• Parties: Tilton v. Tilton
• Court: Kentucky Court of Appeals

130 Ky. 281

Tilton v. Tilton

Court of Appeals of Kentucky.

November 11, 1908.

Appeal from Robertson Circuit Court.

L. P. FRYER, Circuit Judge.

Judgment for defendant. Plaintiff appeals. — Reversed.

ROBT. BUCKNER and JNO. P. McCARTNEY attorneys for appellant.

J. J. OSBORNE for appellees.

SAMUEL HOLMES and W. J. OSBORNE of counsel.

OPINION OF THE COURT BY JUDGE LASSING — Reversing.

In 1875 Nimrod A. Tilton, a widower, and Nancy F. Morand, a widow, both residents of Robertson county, Ky., entered into the following contract: "This indenture made and entered into this third day of July, 1875, by and between Nimrod A. Tilton and Mrs. Nancy F. Morand, both of the county of Robertson and State of Kentucky: Witnesseth, that for and in consideration of the said Tilton to lawfully marry the said Nancy F. Morand, said marriage as aforesaid to take place during the year 1875, and the further consideration that the said Tilton has this day given to the said Mrs. Nancy F. Morand one Singer sewing machine, of the value of $80.00 (eighty dollars) and one black mare, of the value of one hundred and fifty dollars ($150.00). Now in consideration of said marriage to take place or happen as aforesaid, and the consideration of said sewing machine and said mare, the receipt of which, that is, said machine and said mare, is hereby acknowledged by the said Mrs. Nancy F. Morand. The said Mrs. Nancy F. Morand for and in consideration of the premises aforesaid, does by these presents release, confirm and forever release and confirm unto said N. A. Tilton, his heirs and assigns, any dower interest or any other interest whatsoever she may acquire in and to the land or personal property or any insurance policy which the said Tilton may now have upon his life, or any property which he may hereafter acquire in and to which the said Mrs. Nancy F. Morand might be entitled to by reason of said marriage, and it is further understood by the parties hereto that the said N. A. Tilton is in no wise to be responsible for any debts contracted by the said Mrs. Nancy F. Morand after their said marriage or proposed marriage shall have taken place, without the written consent or order of the said Tilton. It is further understood by the parties hereto, that in case there should be no heirs born to the said N. A. Tilton and Mrs. Nancy F. Morand, by reason of said proposed marriage, then whatever property shall remain at the death of Mrs. Nancy F. Morand, shall inure to the said Tilton or his heirs. It is further understood by the parties hereto, that the said Tilton, whenever said marriage shall take place, is to clothe and furnish the necessaries of life to the said Mrs. Nancy F. Morand. In testimony whereof the parties hereto have hereunto set their hands, the day and year first above written." At the date of the execution of this contract Nimrod A. Tilton was living on a farm of some 160 or 170 acres with his four children, the oldest a boy some 17 or 18 years of age, the youngest a girl, possibly 8 or 9 years of age. His wife had died some three months before. Nancy F. Morand had been a widow for some three or four years. She had no children. She had lived in the home of Nimrod A. Tilton, commonly called "Judge" Tilton, for a year or more before the death of his wife, who was quite an invalid. During this time she had attended to the general household duties, in addition to doing the cooking and washing, on a salary of $1.50 per week. After the death of Mrs. Tilton she continued to live in his home and look after the household duties, etc., as she had done before. In the early part of September following she and Judge Tilton were married. They lived together on his farm from that time until his death in 1906. The marriage contract was recorded in the county court clerk's office in October following their marriage. He left a will by the terms of which he gave to his wife the household goods, kitchen furniture, and about $200 in money. By another clause of the will provision is made that, if it is contested, the devisee contesting forfeits all right to any portion of his estate. She renounced the will, and filed a suit in the Robertson circuit court, in which she sought to have canceled and set aside the ante-nuptial contract above set out, on the ground that it was obtained from her through fraud and misrepresentation, and that it was unjust, inequitable, and a fraud upon her rights as a married woman. She asked that she be adjudged the owner of a widow's share in her husband's estate. Issue was joined upon the allegations of the petition, much proof taken, and upon final hearing the chancellor found against her contention, and dismissed her petition. From that finding and judgment she prosecutes this appeal.

Most all of the proof that has been taken relates to the home life of Judge Tilton, especially during the last few years thereof, when he was sick, afflicted with a cancer, and a good part of the time confined to his bed, almost helpless. Further than to show the devoted, untiring, and constant service which Mrs. Tilton rendered her husband in his sad affliction, this evidence has little bearing on the question before us. Mrs. Tilton and Dr. M. S. Brown are the only witnesses who have testified concerning the execution of this marriage contract. The testimony of Mrs. Tilton, under the well-recognized rule, was incompetent, and the trial judge did not err in excluding it from his consideration. The question in issue must therefore be determined by the contract itself, as read in the light of the testimony of Dr. Brown. At the time of the execution of this contract Dr. Brown was engaged in the practice of law at Mt. Olivet, and Judge Kimbrough was associated with him. He testifies that Judge Tilton came to see him about the preparation of this contract, and talked about the matter over with him, and told him how he wanted it drawn; that he in turn discussed the matter with Judge Kimbrough, his law partner, and had Judge Kimbrough draw up the contract as it now is. After it was prepared, Judge Tilton came to town with Nancy F. Morand, and brought her to his (Brown's) room in the hotel, and there he (Brown) read over the contract to her, and explained it to her, and after this was done, it was signed by Judge Tilton and Nancy F. Morand in his presence. The clerk was caused to come to his room and take their acknowledgments. This done, Judge Tilton and Nancy F. Morand left, and returned to his home. Dr. Brown further testifies that he was at that time a friend of her family. That they were poor people, and he took an interest in her, and on this account was careful to see that she understood what she was doing. That both she and Judge Tilton were, at that time, being criticised in the neighborhood because of her staying at his house and taking care of his home and his children for him after the death of his wife, and in the course of his testimony he said: "There was some necessity for the peace offering in the neighborhood on account of the young people living there, and that she know of this arrangement. She was going to...