Gambar halaman

or homestead in or to any property which shall belong to the estate of said party of the first part at the time of his decease, provided she shall survive him. And the said party of the first part, in consideration of the premises aforesaid, hereby agrees that, in case that second party shall survive first party, said second party shall be allowed and paid out of the estate of said first party, by his executors or heirs, the interest at 6 per cent. per annum, payable simiannually, upon the sum of five thousand dollars, which shall be paid at and after the decease of first party. First party also agrees the second party shall be paid the further sum of three hundred dollars in cash by the executors or heirs at his decease, and that she shall have the right to select household and kitchen furniture worth not to exceed two hundred dollars at the date of decease. It is further understood and mutually agreed that the interest on the five thousand dollars shall cease at the death of second party, or at such time as she ceases to be the widow of first party, should she survive him; and, in consideration of promises heretofore made, second party accepts the same in full of all claims upon

first party's estate of every kind whatever, including 2 dower or homestead or any distributive” The orig

inal of this instrument is before iis. It consists of four pages of legal cap, written on two unseparated leaves forming one sheet of paper, in the upper corner of which are paper fasteners. The paper itself shows very clearly that it is not complete, but from it and the other evidence, the district court found that it was a part of the antenuptial contract, and that it shows substantially the provisions thereof.

Appellees seem to have been of the opinion on the trial below that another complete antenuptial contract had at some time existed, but was either secreted or destroyed by

the appellant, and on this theory they offered evi3 dence tending to show the existence of such contract.

some time before the death of A. B. Devoe. The


appellant, on the other hand, offered evidence showing that but one such contract had been executed by the parties, and, while not expressly admitting that the fragment above set out is a part thereof, she put in evidence as tending to show that it had been revoked by the destruction of a part thereof, and this position she supported by the testimony of wit

We think there can be no serious doubt that this writing is a part of the completed contract made by the parties, and that only one such contract was ever made. All the direct evidence on the subject shows that but one contract was signed by Mr. Devoe and the appellant, and the testimony of the only witness for the appellees who claims to have seen or read an antenuptial agreement between the parties is not so inconsistent with the terms of the one before us as to raise serious doubt as to the identity of the contract.

But the appellant contends that the paper before us is not competent evidence of the agreement, because it is incomplete, and does not bear the signatures of the parties

thereto. This is based on the ground that the statute 4 of frauds requires such contracts to be in writing,

and that parol evidence can in no case be used to establish their terms. No case is cited by counsel which tends even to support this doctrine. The cases of laughn v. Smith, 58 Iowa, 553; Watts v. Cranberry Co., 63 Iowa, 730; and Leather Co. v. Porter, 94 Iowa, 117; only touch the familiar rule relating to varying or enlarging written contracts by parol. Elwell v. Walker, 52 Iowa, 256, mentions the subject, but does not rule thereon. The appellant's contention cannot be sustained by either reason or authority. The only purpose of evidence is to prove facts which shall establish the legal or equitable rights of suitors; and, while it is a general principle, firmly established in the interests of justice, that the best evidence capable of production shall be required, this rule in no way conflicts with the admission of secondary evidence of a lost instrument, even though it be one which the law requires to be in writing; for,

[ocr errors][merged small][ocr errors][ocr errors]

if the instrument were lost without the fault of either party, or if it were wantonly destroyed or secreted by one, it would be a manifest subversion of justice to deny oral proof of its contents after satisfactory proof of its loss or destruction. This view is well sustained by authority. Greenleaf Evidenec (13th ed.), sections 84, 86; 13 Am. & Eng. Enc. Law, 1119; Davis i'. Strohm, 17 Iowa, 421. And see Postel v. Palmer, 71 Iowa, 157. And in the following cases parol evidence of the terms of lost antenuptial contracts was almitted: McNutt v. McNutt, 116 Ind. 543 (19 N. E. Rp. 115, 2 L. R. A. 372); Wilson r. IIolt, 83 Ala. 528 (3 South.. Rep. 321, 3 Am. St. Rep. 768); West v. Walker, 77 Wis. 557 (46 N. W. Rep. 819); Spencer v. Boardman, 118 III. 553 (9 N. E. Rep. 330); Tayloe v. Riggs, 1 Pet. 591 (7 L. Ed. 275 the ruling in this case was later approved in De Lane v. Moore, 14 How. 253 (14 L. Ed. 409). This question is involved in this case only so far as the contents of the missing part of the contract are concerned, for, as we have seen, the making and signing of a contract are conceded by all parties. The instrument before us contains in itself a full and complete waiver of all statutory interest in the real and personal estate of the deceased, including the homestead; and the consideration named therefor seems

also to be full and complete. There is evidence tend5 ing to show that the missing part of the contract

contained some provision for a permanent home for the appellant after her husband's death, but nothing is shown which we think indicates any other conditions as to the widow's statutory interest. Hence we think the instrument before us must be held to contain substantially all the conditions affecting her interest in her husband's estate. In fact, she does not herself say anything to the contrary, nor does any witness for her testify to any facts which make this conclusion doubtful.

Appellant urges that the antenuptial contract was rescinded during the lifetime of A. B. Devoe, and in support

thereof calls attention to the proven facts that it was never recorded; that she signed deeds conveying property; that genuine affection existed between the husband and wife, and that Mr. Devoe was “to a great extent alienated from his adult children by reason of their mistreatment of him and appellant;" and finally, because the deceased himself destroyed the contract after his marriage. When the contract was executed, Vr. Devoe expressly requested that the witness Bivens make no disclosure of the fact. Some two or three weeks thereafter Mr. Devoe called upon Mr. Bivens, and complained bitterly because the transaction had in some way became known to the public. It was not necessary to record the contract to give it validity, nor is it usual for the contracting parties in such cases to take the public into their confidence by giving it the details of marriage settlements. So we see no force in this claim of the appellant. That the contract was not recorded is the best reason that can be given for the wife's joining in deeds. The evidence does not support the claim that the children were alienated from their father. And the law presumes the affection between husband and wife to have existed when they entered into the solemn engagement of marriage. Was tlah contract rescinded? If rescinded at all, it was by its destruction in whole or in part. Aside from the circumstances which the appellant contends support this claim, there is the testimony of Mrs. Graham that JIr. Devoe told her in the fall of 1897 that he had destroyed the contract, and that of her young daughter and Mrs. Devoe, corroborative of the conversation related. On the other hand, the record conclusively shows Mr. Devoe to have been unusually secretive as to his business and domestic affairs and that neither he nor his wife were on terms of uusual intimacy with Drs. Graham. It is not at all probable that Mr. Devoe would acquaint Mrs. Graham in the casual call at her house with the details of his business and the clestruction of the conAtract, and give, as it is claimed he did, his reasons therefor.

This seems the more improbable because the reasons claimed to have been given find so little support in the record, if, indeed, it may be said they have any. Again, it is almost conclusively shown by the statements of the appellant herself that the contract could not have been destroyed at the time of the conversation which Mrs. Graham recites, and there are many strong facts and circumstances before us supporting the conclusion we reach that the contract was not destroyed by Mr. Devoe. It was an instrument which had been carefully prepared under his direction, evidently after mature deliberation. It was unusually full and complete, and gave substantial reasons for its execution.

It was a contract made for the benefit of his sons and daughters by previous marriages, all of whom were at the time adults, and may be presumed to have materially assisted in the accumulation of his property. There is no substantial evidence that his relations with these children had changed after his marriage to the appellant except as to the son William, and as to him it is not at all satisfactory. If this contract might be rescinded by its destruction or by parol, -a question which we do not decide,—the burden rests upon the appellant to prove such rescission by satisfactory evidence, and this she has failed to do.

It is contended that the contract is so unfair and unreasonable, and contains in itself such a gross misrepresentation as to the amount of the decedent's property, that it

should not be upheld. An engagement of marriage 7 creates a sacred and confidential relation between

the parties, second only to that of marriage itself, and demands the highest degree of morality and fairness on the part of both contracting parties. But, giving to this principle its fullest meaning, it does not follow that courts should make contracts for the parties, nor disregard those which they have themselves solemnly entered into, unless it shall be satisfactorily proven that fraud has been practiced on an innocent party. And in determining this important,

« SebelumnyaLanjutkan »