Weber's Estate, In re
| Decision Date | 04 May 1960 |
| Docket Number | No. 36165,36165 |
| Citation | 170 Ohio St. 567,167 N.E.2d 98 |
| Parties | , 11 O.O.2d 415 In re ESTATE of WEBER. WEBER, Ex'r, Appellant, v. WEBER, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A written agreement, executed after marriage by a husband and wife, which recites that it was made for the purpose of setting forth in writing an oral antenuptial agreement between the parties and also recites the terms thereof and affirmatively shows that it is a memorandum of such oral antenuptial agreement, constitutes a sufficient 'memorandum or note' of such agreement to comply with the provisions of Section 1335.05, Revised Code, known as the statute of frauds, and is not a contract between a husband and wife to 'alter their legal relations' as prohibited by Section 3103.06, Revised Code.
This cause arose from a decision of the Probate Court of Ashtabula County overruling the exceptions of Christina Weber widow and surviving spouse of Peter Weber, deceased, to the inventory filed in the estate of said decedent. The exceptions were taken because the executor refused to allow the appraisers to set off to the widow property exempt from administration and an allowance for the year's support. She did not otherwise challenge the administration of the estate.
Peter Weber was married to Christina Boldan on the 23rd day of May 1950. Each of the parties had been previously married, and each had children by these former marriages.
On January 9, 1951, about seven and a half months after their marriage, Peter Weber and Christina Weber executed a written agreement which, after stating that each of the parties was at the time of said marriage the owner of certain property in his or her own name, that 'prior to their said marriage, the parties hereto had entered into a verbal agreement as to the division of their said property * * * in the event of the death of either of said parties,' and that 'this agreement is made and executed for the purpose of setting forth in writing the agreement heretofore reached by the parties, verbally,' provided for the equal division between themselves, by quitclaim deeds, of the real estate owned by each party and the placing of all such 'real estate, cash, bank accounts, notes, contracts, mortgages and accounts in joint ownership,' and which provided further 'that neither party shall have any right, interest or claim in or to the property of the other, upon the death of the other,' and that each party was barred from 'any and all rights, interests or claims by way of dower, inheritance, descent, distribution, allowance for twelve (12) months' support, right to reside in the mansion house, and all rights or claims as widow, widower, heir, distributee, survivor or next of kin.'
The contract also provided that each party relinquished 'to the other, and to the heirs, executors, administrators, devisees and legatees of the other,' the rights above enumerated and 'all other rights or claims whatsoever, which may, in any manner, arise or accrue by virtue of said marriage,' and that upon the death of either party all his or her property not disposed of during life or by last will and testament, should 'descend to, vest in, and be distributed to, such person or persons as would be entitled thereto by the statutes of descent and distribution of the state of Ohio then in effect, had the surviving party died during the life of the other party.' The contract was signed by both parties, witnessed and acknowledged before a notary public.
On the 8th day of February 1951, Peter Weber executed his last will and testament in which he devised all his property, real and personal, to his children, in equal shares. In this instrument, the following appears:
'On January 9th, 1951, my wife, Christina Weber, and I, effected a property settlement and executed an agreement whereby each waived all rights, interests or claims by way of dower, inheritance, descent, distribution, allowance for twelve months support, right to reside in the manor house, and all rights or claims as widow, widower, heir distributee, survivor or next of kin and all other rights or claims whatsoever, in or to the estate of the other, either real or personal and either now owned or hereafter acquired, which may in any manner arise or accrue by virtue of said marriage.'
The exceptions to the inventory filed by Christina Weber were heard by the Probate Court. The widow admitted signing the agreement dated January 9, 1951, but claims that this did not bar her right to exemption or to a year's support for the reason that it was made after she had married Peter Weber, and that a husband and wife could not alter their legal relations in that manner. She did not claim the statutory rights of a surviving spouse otherwise. The executor urged that there had been part performance by the parties sufficient to take the agreement out of the statute of frauds in that conveyances of property had been made to each other in accord with the agreement, and also contended that the written agreement is enforceable by reason of the fact it is stated in this written agreement that it is in confirmation of a prior oral agreement made by both parties before their marriage, and thereby became a valid antenuptial agreement.
The Probate Court overruled the exceptions of the widow to the inventory, finding that a preceding oral agreement before marriage was indicated in the written agreement itself.
An appeal was prosecuted to the Court of Appeals, which court reversed the judgment of the Probate Court on the following grounds: That the alleged oral agreement was clearly in contemplation of marriage; that when that marriage took place, without any note or memorandum in writing, the consideration for the agreement was eliminated; that the oral agreement could not thereafter be reduced to writing, because of the provisions of what is now Section 3103.06, Revised Code, that 'a husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation'; and that partial performance cannot validate an agreement after marriage when the agreement itself is prohibited.
The cause is before this court on the allowance of a motion to certify the record.
Oliver W. Bates, Madison, for appellant.
Lyle F. Merritt, Geneva, for appellee.
The first question presented is whether the postnuptial writing of a contract incorporating and confirming the terms and conditions of an antenuptial oral agreement which, standing alone, would be unenforceable under the statute of frauds, validates and takes such antenuptial oral agreement outside the statute.
The section referred to as the statute of frauds is Section 1335.05, Revised Code, which provides as follows:
'No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person; nor to charge an executor or administrator upon a special promise to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.'
The appellee, as the surviving spouse, relies on the case of Henry v. Henry, 1875, 27 Ohio St. 121. The statute of frauds then in effect (see 1 S. & C., 659) was almost identical with Section 1335.05, Revised Code, supra. The syllabus in that case held that 'an antenuptial contract, in parol * * * is void under the fifth section of the statute of frauds * * *.' The court also held that the oral contract was 'an entire one' and held further that there was not sufficient part performance as to take the case out of the statute. The factual situation of that case makes it inapplicable to this one.
Cited also by the appellee are the cases of Finch v. Finch, 1860, 10 Ohio St. 501 (), Spangler v. Dukes, 1884, 39 Ohio St. 642, and DuBois v. Coen, 1919, 100 Ohio St. 17, 125 N.E. 121.
In the Finch case there was an oral antenuptial agreement and it...
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