Pierce v. Pierce.

W. Gleason, for appellant.

J. H. Maynard, for respondent.

MILLER, J. Upon the accounting of Mrs. Pierce, as adminis tratrix of her deceased husband's estate, before the surrogate, it was held that the ante-nuptial agreement entered into at the time of their marriage was valid and in full force, and for that reason she was not entitled to a share, as his widow, in the distribution of his estate, and was only allowed the amount named in said agreement. The agreement referred to purported to have been entered into in contemplation of marriage, and for the purpose of making provision for a fit and proper settlement by the deceased, for the benefit of his intended wife, and thereby the deceased agreed that if the marriage was had and solemnized, he would, in case she survived him, pay or cause to be paid to her, the sum of $500 for her sole and separate use; and she agreed, in consideration of the "money paid to her," that said money should be in full satisfaction of her dower, and bar her from claiming the same, or any share of his personal property, unless given to her.

We are of the opinion that the contract in question cannot be upheld, for the reason that the evidence establishes beyond any controversy that it was executed by the respondent, under a belief - which was created by the conduct and declarations of the deceased that it contained more beneficial provisions in her favor than were contained in the same, and that the deceased, taking advantage of the confidential relationship existing between him and the respondent, who was the intended wife of the deceased, he was chargeable with fraud and misrepresentation in procuring her signature to the same.

Ante-nuptial contracts, whereby the future wife releases her claim to her right of dower, and all other rights to the estate of her husband upon his decease, are fully recognized in law. When fairly made and executed without fraud or imposition, they will be enforced by the courts. The surrender and release of rights to be acquired by the intended wife by the marriage relation must, however, be regarded with the most rigid scrutiny; and courts will not enforce contracts of this nature against the wife where the circumstances establish that she has been overreached and deceived, or been induced by false representations to enter into a contract

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which does not express or carry out the real intention of the parties. The relationship of parties who are about to enter into the married state is one of mutual confidence, and far different from that of those who are dealing with each other at arms' length. This is especially the case on the part of the woman; and it is the duty of each to be frank and unreserved when about to enter into an ante-nuptial contract, by a full disclosure of all facts and circumstances which may in any way affect the agreement. Kline v. Kline, 57 Penn. St. 120.

In the case cited, which involved the validity of a marriage contract, it was held there was error in the charge of the judge to the jury that the woman was bound to exercise her judgment, and take advantage of the opportunity that existed to obtain information if she did not do so, it was her fault; and that the parties were dealing at arms' length. See, also, case of Kline's Estate, 64 Penn. St. 122, which holds that parties to such a contract occupy a confidential relation; and Tarbell v. Tarbell, 10 Allen, 278; Fay v. Rickman, 1 N. C. (Bush's Eq.) 278; Woodward v. Woodward, 5 Sneed, 49. These authorities go very far in holding that the courts require strict proof of fairness, when called upon to enforce an antenuptial contract against the wife, and especially when it is apparent that the provision made for the wife is inequitable, unjust and unreasonably disproportionate to the means of the husband. The rule undoubtedly is that in such a case every presumption is against the validity of the contract, and the burden of proof is cast upon the husband, or those who represent him, in order to uphold and enforce the same as a valid and subsisting agreement. It is also a well-settled principle that a court of equity will interpose its power to set aside an instrument executed between parties who stand in confidential relations, when there is evidence showing fraud, or even when it appears that undue influence has been exercised, when one party is so situated as to exercise a controlling influence over the will, conduct, and interest of the other. Sears v. Shafer, 6 N. Y. 268; Nesbit v. Lockman, 34 id. 167. So, also, when one party is intrusted to reduce a contract to writing, he is bound to do so faithfully and truly; and any variation from it, by omitting some of its terms, or by inserting provisions not embraced in it, if not known to the other party and distinctly assented to by him, is a clear fraud. Botsford v. Mc Lean, 45 Barb. 478488, and authorities cited. While parties to a written agreement

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should look out for themselves, and ordinarily the written contract is presumed to express their common intention, yet, when one occupies a confidential relationship to the other, and was intrusted with reducing it to writing, and it is clearly made to appear that the written contract was untrue, and misrepresents and misstates the real intention as understood and agreed upon, it cannot stand. More especially is this rule applicable when undue advantage has been taken and a fraud perpetrated. Within the rules referred to, a case is made out by the evidence which establishes that the alleged ante-nuptial agreement was nugatory and void. The testimony is uncontradicted and unimpeached, that when the respondent signed the contract she acted under a belief and conviction that she was thereby to receive the sum of $500 in cash, a deed of a house and lot, and $500 if she survived the deceased. The contract was stated or read to the respondent as containing those provisions, before the proposed marriage; and when it was assented to by her, at the time when the contract was finally executed, the deceased stated to the clergyman who performed the marriage ceremony and witnessed the written agreement, that it was unnecessary for him to read it-intimating that the contents were known and understood. It was not read at that time, nor does it appear distinctly that it was ever read by the respondent at any time. It is also proved that after the marriage, on one occasion, the deceased asked the respondent if she did not wish she had the contract, and she replied it was not good for any thing, unless he paid her the $500 he had agreed to. And in the summer of 1860 the respondent stated to the deceased that he had agreed to give her the house and lot, and asked him why he did not do it; and he replied, that perhaps she should have the house he lived in, or to that effect. It thus appeared that he acquiesced in the statement made as to the contents of the contract, aud did not deny that it contained the provisions claimed by her. The proof referred to shows that he kept it all the time in his own possession, or under his own control; and when called upon to fulfill his engagement, he failed to deny the statements as to the agreement actually made, and virtually admitted that they were correct.

It is plain that the respondent understood the contract as containing the provisions stated by the deceased, and that the deceased understood that such was her belief as to its contents. He permitted her to act on this hypothesis, and while laboring under an VOL. XXVII-4

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entire mistake, without correcting it, and it does not rest with his heirs now to claim that it was otherwise than the deceased stated and the respondent understood at the time. She married him under such a belief, and he having knowledge that such was her understanding of the agreement, those who represent him are estopped now from insisting that the contract was valid and should be enforced.

For the reasons stated, the alleged contract was invalid and void, and the General Term very properly modified the decree of the surrogate by allowing the respondent a distributive share, as widow, in the estate of the deceased.

No other question raised demands comment, and the judgment of the General Term should be affirmed, with costs. All concur, except RAPALLO, J., absent.

Judgment affirmed.

NOTE BY THE REPORTER.-The duty of courts to exercise a vigilant scrutiny of marriage settlements whenever fraud is alleged has been asserted in many cases. The following are the principal cases cited by the court and counsel on this point in the principal case. Page v. Horne, 11 Beav. 227, A. D. 1848. Here a settlement in contemplation of marriage was made of the woman's own property on herself, and was revoked by her without consultation on the day before the marriage. The revocation was held invalid in the absence of proof of its entire fairness. The court said: "It is true that no influence is proved to have been used; but no one can say what may be the extent of the influence of a man over a woman, whose consent to marriage he has obtained. Here, the husband having mortgaged the property, we are told by the report of the master that no undue influence had been used. The court, however, will look with great vigilance at the circumstances and situation of the parties in such cases as the present, and will not only consider the influence which the intended husband, either by soothing or violence, may have used, but require satisfactory evidence that it has not been used." "I think it was not competent for him afterward to deal with her alone, in obtaining a revoca. tion of the settlement."

Taylor v. Rickman, 1 N. C. 278, A. D. 1853. This was a bill filed by a purchaser of property from defendant's wife, and alleged to have been settled by him on her before marriage. The court said: "To entitle the plaintiff to the aid of the court in carrying into effect the marriage articles executed by the defendant and the sister of the plaintiff, it was necessary for him to allege and prove that the instrument was executed by the defendant deliberately, and without surprise or imposition. The plaintiff makes the allegation, but it is denied by the defendant, who avers that the execution of the instrument was obtained from him both by surprise and imposition, for that the subject was never mentioned to him until the parties were on the floor to be married; that he was surprised, confused, and in the act of going off without being married, whereupon being told by the magistrate that the paper would not be valid without being registered, and believing afterward that he would have his election either to have it registered or not he leaves it to be inferred that he did sign it, and the parties were then married. He kept the paper and never did have it registered." "The plaintiff has failed to prove his allegation." The property in question was two negro slaves owned by the wife before marriage.

Cobbett v. Brock, 20 Beav. 524, A. D. 1855. The principal doctrine was recognized. Here a debtor induced a lady, whom he was engaged to marry, to become security for his debt. It was held that although the wife might complain of the transaction as between

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herself and her husband, yet the only duty of the creditor, who was aware of the rela tion of the parties, was to see that she had proper professional assistance, and that any fraud or misrepresentation of the debtor in the transaction, of which the creditor bad no notice, did not affect his security.

Coulson v. Allison, 2 DeGex, F. & J. 521, A. D. 1860. Where a widower married the sister of his deceased wife, and she after such marriage gave him all her property, it was held that the burden of showing that at the time of entering into the transaction she was fully, fairly, and truly informed of its character, and of her legal status, was on the husband, and also that such a marriage was not a sufficient consideration for such a conveyance. The case seems to have been put on the latter ground, for the court said, supposing both parties to have been aware of the true state of the law, "nothing can well be conceived more immoral than for a woman to make over the whole of her property to a man in contemplation of continuing an illicit intercourse with him for the remainder of their joint lives."

James v. Holmes, 31 L. J. (N S.) Ch. 567, A. D. 1862. When a man lived with a woman in the character of her husband, and obtained money from her that he might invest it, the court refused, without positive proof, to declare that he was not a trustee, or to permit him after eleven years to claim the money or investments as his own, or as a loan. The plaintiff was illiterate, and the money was obtained while the defendant was promising to marry her.

Kline v. Kline, 57 Penn. St. 120, A D. 1868. The court below charged that "the woman was bound to exercise her judgment, and take advantage of the opportunity that existed to obtain information; if she did not do so, it was her own fault. The parties were dealing at arm's length. He was not bound to diclose to her the amount or value of his property." This was held error. The court say: "There is perhaps no relation of life in which more unbounded confidence is reposed than in that existing between parties who are betrothed to each other. Especially does the woman place the most implicit trust in the truth and affection of him in whose keeping she is about to deposit the happiness of her future life. From him she has no secrets; she believes he has none from her. To consider such persons as in the same category as buyers and sellers, and to say that they are dealing at arm's length, we think is a mistake. Surely when a man and woman are on the eve of marriage, and it is proposed between them, as in this instance, to enter into an ante-nuptial contract upon the subject of the enjoyment and disposition of their respective estates,' it is the duty of each to be frank and unreserved in the dis closure of all circumstances naturally bearing upon the agreement. It may perhaps be presumed in the first instance that such disclosure was made, but any designed and material concealment ought to avoid the contract at the will of the party who has been injured." The words italicized are obiter, and evidently in conflict with the well-settled doctrine, but the opinion was addressed only to the error of the charge, and expresses the right doctrine so far as it was necessary to go.

Wollaston v. Tribe, 9 L. R. Eq. 44, A. D. 1869. One claiming under a marriage settletlement, not subject to revocation, has the burden of proving that the gift was understood by the donor to be irrevocable. The question was between the donor and neph. ews and nieces. The court said, "She never had fully explained to her the nature of the settlement which she executed, and she was really in the hands of persons who derive a benefit from the settlement "

Falk v. Turner, 101 Mass. 494, A. D. 1869. A voluntary settlement, by a woman in contemplation of marriage, of her property in trust for her exclusive benefit during her life notwithstanding the marriage, will not be set aside after the marriage, on the mere ground that the trustee was her confidential adviser, although she is able to manage the property, and wishes to regain possession. The court said, "She appears to have been in a state of independence, and wholly disregarded what she avers he advised in respect to her marriage; and where such independence exists, a contract will not be set aside merely on account of confidential relations."

Rockafellow v. Newcomb, 57 Ill. 186, A. D. 1870. Here the principal doctrine was invoked for the protection of the man against the woman. The intended husband, at the woman's solicitation, had deeded her a piece of land worth $7,000 in exchange for one worth $700; and afterward she declined to marry him. The court amended the conveyance. The court