West v. Walker

• Citation: 46 N.W. 819,77 Wis. 557
• Parties: WEST v. WALKER ET AL.
• Decision Date: 14 October 1890
• Court: United States State Supreme Court of Wisconsin

77 Wis. 557

46 N.W. 819

WEST

v.WALKER ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Portage county.A. S. Spooner and Cate, Jones & Sanborn, for appellants.

Raymond & Brennan, for respondent.

ORTON, J.

The facts of this case are substantially as follows: On the 19th day of October, 1882, one Calvin West, a widower, and the father of several children, at the age of 85 years, then residing in Walworth county, in this state, and the owner of a half section of land in section 25, township 1, range 15 E., lying in said county, intermarried with the plaintiff, then one Elizabeth Butler, a widow, and twice before married, and the mother of at least one child, then being in said county, and of the age of 61 years, and for a time they lived in the house, and on the homestead of the said Calvin West, on said land. A short time before said marriage, and on the 16th day of August, 1882, the said parties entered into a written antenuptial agreement, signed by both of them in the presence of witnesses, by which the said Calvin West agreed to give to the said Elizabeth $1,000 from his estate, on his death, if she survived him, and her support as long as the lived, in consideration and in lieu of her dower in his lands, and in full of all allowances whatever, and claims against his estate; and the said Elizabeth agreed to marry the said Calvin, and be to him a true and faithful wife. This contract was executed in duplicate, and delivered to each party respectively. This is the substance of the contract as derived from the testimony of witnesses, the originals having been lost or destroyed. This would seem to be the substance of the agreement, but it was probably put in better form, having been drawn by A. S. Spooner, Esq., an attorney at law of said county, who, together with Spencer H. West, one of the sons of the said Calvin, about 65 years of age, and a witness to said contract, and T. H. Walker, Esq., an attorney at law of the county of Portage, and administrator of the estate, who had seen the contract, testified of its contents. The terms of this contract were few and short, and could easily have been remembered, and all of the witnesses, including the said Walker, substantially agreed as to the terms thereof. The learned circuit court found “that the said Calvin West and the plaintiff in this action, prior to their marriage, made an antenuptial agreement of some kind, but what were the terms of such agrecment in full does not satisfactorily appear from the evidence.” We are compelled to differ from the learned circuit court and hold that the terms of said agreement do both satisfactorily and sufficiently appear, and that said agreement was valid and binding on both of said parties as an antenuptial agreement, by which the plaintiff surrendered her right of dower in the lands of said Calvin West, and all claims against his estate, in consideration of her support during her life, and $1,000 of his estate. The plaintiff herself testified that the agreement was signed by both of them, and one of them delivered to her, and that it was executed two or three months before their marriage. In Wilson v. Holt, 3 South. Rep. 321, an antenuptial agreement that had been destroyed was established on less evidence. There was perfect agreement of the witnesses as to its contents, and no contradictory testimony on the question. At the time of said marriage, the plaintiff had known the said Calvin West for 20 years, and she was entirely destitute of property and of means of support, except the use of a house and lot. This agreement was made in view of their prospective marriage, and their marriage was one of its stipulations, and based upon its faith and validity. It may be said to have been one of the inducements of the marriage, and one of the conditions upon which it took place, and we might almost say that it would not have taken place without it. The great importance and materiality of this antenuptial agreement sufficiently appears. Calvin West died on the 28th day of March, 1886, where he had lived with the plaintiff for some time, at the residence of the plaintiff's married daughter in Portage county, in this state, with whom they had been boarding. He left a personal estate, valued by the referee at $10,000, and proved to be worth $17,000, and said real estate was appraised at about $9,000. He left a will, by which he devised to the heirs of six of his children, and to an adopted son, all of his property, in certain amounts, to the extent of about $6,000, and the residue thereof to be equally distributed between his heirs at law. Letters of administration were granted by the county court of Portage county to the said Walker, one of the respondents. About two weeks before the said Calvin West died, he executed an instrument in writing, drawn by the said Walker, of substantially the same terms of said antenuptial agreement, with the additional stipulation, on his part, giving to the plaintiff all his household furniture and clothing, and making the $1,000 payable in government bonds. This instrument repeats that it should be in full satisfaction and payment of all and every claim against his estate, including dower and all other allowances. There is only one stipulation in said instrument, on her part, in addition to those in said antenuptial agreement, but of no particular consequence, and that is that neither should contract debts without the consent of the other. The first clause of this instrument is that “all previous contracts and agreements thereto” are thereby revoked, and made null and void. This action is brought in the Portage county circuit court, where the said Calvin West died. It is stated in the complaint that the plaintiff filed in said county court of Portage county on the 13th day of January, 1887, a notice in writing that she elected to take the provision made for her by law, instead of any other provision, and claiming her right of dower in the lands of which her husband, the said Calvin West, died seised, and the same rights to the homestead, and the same share of his personal estate, as if he had died intestate. This action is brought to have it adjudged that the plaintiff is entitled to dower in the aforesaid real estate, and to have it assigned to her, and to have the homestead therein set apart to her, and her share in the personal estate adjudged to her; and such is substantially the prayer of the complaint, and such is substantially her recovery in the action by the findings and judgment. The above last-mentioned instrument was introduced in evidence by the learned counsel of the plaintiff, in order to show that the said antenuptial agreement had been canceled and revoked, and they so contend on this appeal; and it appears that she has set aside and waived said instrument also, and now demands her legal rights in the estate, or the provisions made for her by law; and this claim was sanctioned by the circuit court. This statement of the case makes intelligible the questions of law raised on the appeal.

1. The learned counsel of the appellants contend that the circuit court of Portage county, in which the suit is brought, had no jurisdiction of the case; that it is a local action, and should have been...