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liberty at any time to step in and pay Dunham, Buckley & Co. the amount due on the judgment. If Dunham, Buckley & Co. had transferred the judgment to Dore in the belief that the purchase by him was for plaintiff's benefit, and intending that it should be so, or if plaintiff had lost somo right he possessed by placing the matter in Dore's hands and relying upon his purchasing the judgment, there might be some foundation for plaintiff's case. But no such facts are to be found here. Agency arises out of contract.

We have no contract in this transaction; nothing but a naked promise on Dore's part, which the law does not oblige him to keep. The judgment must be REVERSED.

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IN RE ESTATE OF A. B. DEVOE, Deceased, CARRIE E. DEVOE,

Appellant, AND WILLIAM DEVOE v. LUCRETIA E.
Atkinson, Carrie E. DevoE et al., CARRIE E. Delof,
Appellant.

EVIDENCE.

Rescission by Destruction of Contract:

In a widow's action for her interest in her husband's estate, it was proved 1 that prior to the marriage an antenuptial contract was duly

executed. No such contract was found complete after the husband's death, but a paper was discovered containing most of

its provisions, from which the final part containing the signa2 tures was missing, and which contained a waiver by the wife

of all interest in the husband's estate except as provided in the contract. The heirs gave evidence tending to show that another complete contract had been executed, and was in existence shortly prior to the husband's death. The widow's evidence tended to show that only one contract had been executed, and she introduced the paper discovered, as evidence of rescission by destruction. The evidence of the only witness for the heirs who had read any antenuptial contract, as to the contents of

the paper he saw, was not materially inconsistent with the 3 terms of the paper shown. Held, that the evidence sustained a

finding that the paper shown was part of the only contract made.

SAME. In an action by the widow for her interest in her husband's

estate, the heirs pleaded a waiver by antenuptial agreement,
which the widow claimed had been rescinded and destroyed
during the marriitge. At the time of the execution of the
contract, the husband, who was inclined to be secretive as to

his business affairs, requested the witnesses to the execution

6 to say nothing about it, and was much annoyed when the fact

ieaked out later. The contract was not recorded, and the wife

joined in the husband's deeds during his life. The evidence

of destruction was confined to a production of part of the con-

tract with the signatures missing, and the evidence of G. that

the husband, a few months before his death, told her that he

had destroyed the contract, giving as his reasons unsatisfactory

relations with his children, for whose benefit the contract had

been made. G.'s evidence was corroborated by that of her

young daughter and that of the widow. G. was not shown to

have been an intiinate friend to whom such a disclosure would

naturally have been made, and the evidence as to unpleasant

relations with his children was not satisfactory. Held, that

the evidence sustained a finding that there had been no rescis-

sion, since it was not necessary or usual to record such con-

tracts, and the lack of such record was the reason of the wife's

joining in deeds, and the burden of proving rescission by

destruction by satisfactory evidence, assuming there may be re-

cission by destruction or parol, lay on the widow, who failed

to produce it.

and signed by the parties, did not render such part inadmissible in evidence to prove the contents of the contract.

Antenuptial Contract: EVIDENCE TO SUSTAIN. A man of 73 and a

woman of 27 entered into an antenuptial contract, by which the wife waived all interest in the real and personal estate of her husband, which was stated to be $50,000, more or less, in

consideration of the receipt of $300 in cash and $200 in furni7 ture at the husband's death and $300 a year during widowhood.

The wife had been a resident of the neighborhood for a long time and a domestic in her husband's family for several years prior to the marriage, and had always been very poor. After the marriage the wife frequently expressed her satisfaction with the arrangement by which the property was to go to her husband's children, and while she testified that she never saw the contract before signing, yet she did not testify that she did not know her husband's financial standing. There was no evidence showing accurately what the husband was worth when he married, but five or six years later his estate fairly amounted to $120,000. Held, that the contract should be sustained, since the evidence warranted a finding that no fraud or concealment had been practiced, and, in the absence of fraud or unfairness, the parties will be left where they placed themselves.

Appeal from Union District Court.-IIox. II. M. TOWNER,

Judge.

SATURDAY, JANUARY 19, 1901.

The appellant, Carrie E. Devoe, is the widow of A. B. Devoe, who died intestate February 26, 1898. The appellees are the children of 1. B. Devoe by former marriages. In August, 1898, William E. Devoe, one of the appellees herein, brought an action for the partition of real estate of which A. B. Devoe, his father, died seised, alleging that the appellant, Carrie E. Devoe, had no interest therein except such as was provided by an antenuptial contract in writing entered into by her before her marriage to his father. In March, 1899, Carrie E. Devoe applied to the probate court to have her statutory interest in the estate of her deceased husband set apart to her. This was contested on

the ground that she had entered into an antenuptial agreement with her husband, in which she waived her statutory interest in his estate. To the claims of the appellees in both cases, based on the antenuptial contract, she pleaded fraud in procuring the same; that it was unreasonable, and contrary to public policy; and that it was expressly revoked and rescinded, and mutually disregarded and abandoned. After the issues were fully joined in both cases, they were tried together. There were judgments for the appellees therein, and Carrie E. Devoe appeals. The cases are submitted together on appeal.—Affirmed.

D. W. Higbee and Thos. L. Maxwell for appellant.

R. M. La Follette, G. E. Roe, and Sullivan & Sullivan for appellees.

SHERWIN, J.—The evidence conclusively shows that an antenuptial contract in writing was entered into by the appellant and A. B. Devoe, her deceased husband, and that it was drawn by his attorney, Mr. J. H. Copenhaffer, and signed by both parties in his presence and in the presence of Mr. A. J. Bivens, and that it was witnessed by both

Copenhaffer and Bivens, and duly acknowledged by 1 the latter as a notary public. No entire contract

bearing the signatures of the appellant and her husland has been discovered, but a few days after his death the following written instrument was found among his papers in their dwelling house: “Know all men by these presents, that we, A. B. Devoe, party of the first part, of Creston, Union county, Iowa, and Carrie Seely, party of the second part, of the said city of Creston, Union county, Iowa, hare, and by these presents do, and in consideration of the sum of one dollar in hand paid by the parties to this contract to each other, and the further consideration of a solemnization of a marriage between these parties, do make and enter into the following contract, to-wit: That whereas, the said parties above set out have mutually agreed this day to be

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come husband and wife according to law, and it is hereby forever agreed by them that each of them is to have the untrammeled and sole control of his or her own property, real and personal, as though no such marriage had taken place; and it is further mutually agreed by said parties that neither is to be holden or made liable for the debts or contracts of the other, but that each may sue and be sued and conduct his or her own business as though such marriage had never taken place. It is also agreed by the parties that, in case of the death of either without issue, his or her property shall descend and belong to the heirs of the deceased only; but, if there be issue resulting from the said marriage, then in that case, such children shall be entitled to a share equal with the other heirs of said A. B. Devoe, share and share alike. And it is further agreed that first party is to maintain said Carrie Seely in a decent and becoming manner, and said provision shall also apply to any children that may be born during said marriage; provided, always, that the said Carrie Seely, party of the second part, shall also in every way demean herself as a dutiful wife. It is also further agreed that, subject to the conditions of this contract, the said A. B. Devoe, party of the first part, shall have the right to convey or dispose of his property, real or personal, without consent or concurrence of second party, and without the signature of second party, the same as if these parties were unmarried. And it is further mutually understood that at the time of making this contract the first party is 73 years of age, and second party is 27 years of age; that first party has 7 children living from former marriages, and is worth perhaps, in real and personal property, the sum of fifty thousand dollars, more or less; and that second party has no children, and is worth no property, either real or personal, nor has he aided in the accumulation of first party's property. And the said second party, in consideration of the aforesaid, hereby agrees that she will claim no right of dower or to one-third of his estate, either real or personal,

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