In respect of antenuptial contracts, the majority holds that three things *Page 342 must concur as conditions to validity: (a) The contract must be freely entered into: (b) it must not be unjust or in equitable, and (c) it must not be tainted with fraud.
It is then said: "It occurs to us that the contract in this case fails to meet these requirements in that it is an unjust and inequitable agreement."
As authority for reversing the decree, the opinion cites Rodgers on Domestic Relations, 379, where it is said that the husband may settle property on his wife in lieu of her dower rights, and if the agreement is free from fraud or unfairness, the wife will be bound by such merits. The essential of fairness is stressed. The agreement must be bona fide, each party having the right to assume that there is no attempt to overreach. There is the further comment that where the provision made for the intended wife is disproportionate to the means of the husband-to-be, ". . . it raises the presumption of designed concealment and throws the burden upon those claiming in his right to prove that there was full knowledge on her part of all that materially affected the contract."
Of the three conditions held essential to a contract such as we are dealing with, it is only contended that two are present — the settlement, it is said, was "unjust and inequitable," and "the contract was not freely entered into."
There is not the slightest suggestion of fraud; nor is it hinted that Burns concealed from appellant the nature or extent of his property.
As the opinion correctly reflects, marriage was an arrangement convenience, which seemingly ripened into affection. Age disparity was forty years. Each had formerly been married, and each had children. A widow of 22 does not, ordinarily, entertain for a widower of 62 the mating instinct so fortunately a part of youth's estate. Indeed, in the case at bar, possibility of divorce was recognized; and although the contractual provision in that regard would perhaps be unenforceable as in conflict with public policy, the fact that divorce was mentioned *Page 343 evidences a purpose to anticipate any contingency that might arise.
Burns owed filial obligations to his own children, some of whom were in his home in November, 1927, when the marriage was consummated. The father had a right to think of his children's interests. He contemplated an arrangement whereby appellant and her children would have a home. The marriage status was maintained for thirteen years, and there is not so much as a hint that Burns did not meet his obligations with conscientious punctuality and with liberality. Insurance in appellant's favor was a substantial contribution beyond the written engagement; and in every way B. F. Burns dealt with Hester as a father would with a mature child.
There are no disinterested witnesses; yet, as between appellant and the daughter-in-law who testified regarding conversations, appellant's interest was greater than that of the witness.
Appellant is an intelligent woman with a fair degree of education. She has been appointed to her husband's position as postmaster.
The antenuptial contract is being nullified not because of fraud or coercion, or for any one of several causes that if existent might avoid it, but solely because of a belief by judges that it is inequitable, and (secondarily) because appellant says it was not explained to her.
It has long been the rule that (in the absence of fraud, intimidation, or undue influence) mature men and women not under disability have a right to contract, and that they may withhold or dispose of property. It is trite to say that courts interpret contracts, and do not make them.
By reversing this case the rule is established that a woman may, by means of a written agreement, proceed with marriage and accept its benefits for thirteen years, or for any other period. She may require the husband to educate the children born of a former marriage, and admit to a witness whose credibility is not impeached *Page 344 that she understood her rights were to terminate with the death of her husband; then, on second thought, counter with the unsupported assertion that she did not read the contract, and was therefore not informed.
There is a clause in the contract permitting each party to ". . . hold or maintain [his or her] property, both real and personal, separate from the other."
If the situation were reversed, and appellant from her earnings had paid for property to which the husband took title, and it should be coveted by the intestate's heirs, this court would unhesitatingly slay that the contract gave protection.
No thought seems to have been given the fact that the intestate's property (or at least a great deal of it) was acquired while the mother of his children was a helpmate. By the court's action in reversing the decree this dead mother's contributions, whatever they may have been, are transmitted to her successor in the home. This was the eventuality B. F. Burns endeavored to avoid by a contract judicially found to have been free from fraud, but which the majority here says must fail.
Mr. Justice McHaney and Mr. Justice GREENHAW concur in this dissent.