Wingate W. Munsell, Apt. v. Hannah Munsell's Estate

• Decision Date: 03 May 1921
• Citation: 113 A. 521,95 Vt. 103
• Parties: WINGATE W. MUNSELL, APT. v. HANNAH MUNSELL'S ESTATE
• Court: Vermont Supreme Court

113 A. 521

95 Vt. 103

WINGATE W. MUNSELL, APT. v. HANNAH MUNSELL'S ESTATE

Supreme Court of Vermont

May 3, 1921

February Term, 1921.

APPEAL to Franklin county court from a decree of the probate court of the District of Franklin holding that Wingate W. Munsell was barred by a certain antenuptial contract from taking any part of the estate of Hannah Munsell, and decreeing said estate according to the terms of her last will and testament. Heard by Court at the September Term, 1920, Franklin Country Stanton, J., presiding. Judgment affirming the decree of the probate court and dismissing the appeal. The plaintiff excepted.

Decree affirmed with costs. Let it be certified to the probate court.

F L. Webster, D. W. Steele, and D. G. Furman for the plaintiff.

C. G. Austin & Sons for the defendant.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WASTON

In Smith and Nye, Executors v. Wingate W. Munsell, a case in chancery based upon the antenuptial contract in question and brought in aid of the probate court in the settlement and distribution of the estate of Hannah Munsell, reported in 94 Vt. 201, 110 A. 12, the contract was held to be "in full force and of binding effect upon the" surviving husband, the appellant in the present action, and he was "ordered and decreed to keep the same according to its terms."

By the terms of the contract it was not only covenanted that, in the event of said marriage, each of the parties should have hold, and maintain his or her separate control, ownership, and disposition of the property owned by him or her and the avails thereof the same thereafter as if said marriage was not had between them, but the power was expressly reserved to each to make such disposition of his or her property, by gift or will, during his or her lifetime, as he or she saw fit. This power was executed by the wife in her lifetime in one of the ways thus authorized, namely, by will. The case is therefore within the general rule laid down by Mr. Justice Story, "that all antenuptial agreements for securing to a wife separate property, will, unless the contrary is stipulated or implied, give her in equity the full power of disposing of the same, whether real or personal, by any suitable act or instrument in her lifetime, or by her last will, in the same manner, and to the same extent, as if she were a feme sole." 2 Story Eq. Jur. § 1390. And that where "a power is...