This appeal involves the right of the appellant, the surviving husband of Rebecca Battin, deceased, to the interest and share in her estate allowed by law to a surviving spouse. Prior to her marriage to appellant, the deceased was a widow, and her name was then Walker. The appellees are the executor of her estate and her children by the former marriage, who are her heirs at law and the sole legatees under her will.
The case turns upon the validity of an alleged antenuptial agreement, or the proof of such an agreement, between appellant and the deceased. If there is no antenuptial agreement or no competent proof of such an agreement, the appellant is entitled to recover.
The written instrument upon which appellees rely as the antenuptial contract, or as the written evidence of an antenuptial contract, is lost, but it is conceded by appellant that the copy in evidence is a correct copy of the purported contract signed by the appellant and his deceased wife.
Much of the testimony on both sides was objected to on various grounds, but it was established by uncontradicted testimony, to which no valid objection was made, that, on the day of the marriage of appellant and deceased, they went to the town of Tyndall, South Dakota, taking with them the granddaughter of the deceased, a young girl 15 years of age; that they arrived in Tyndall in the forenoon, and visited the office of an attorney; that they were married about noon, had lunch, and later returned to the attorney's office, where the instrument in question was signed, about 3:30 or 4:00 o'clock. The writing is in part as follows: *Page 978
"That the said Bazel D. Battin, for and in consideration of the covenants and agreements on the part of the said — Walker, hereinafter contained, has this day promised and agreed, and does hereby covenant, promise and agree, to and with the said — Walker, that he will marry and receive in marriage the said — Walker, upon the terms, covenants, agreements, and conditions hereinafter set forth."
It further provides that:
"* * * in view of said marriage and for and in consideration of the promises, covenants and agreements herein contained, the said Bazel D. Battin and the said — Walker, and each of them, for themselves, their heirs, executors, administrators and assigns, do hereby promise, covenant and agree, and consent, to and with each other; the said Bazel D. Battin covenants and agrees, to and with the said — Walker, her heirs, devisees, legatees, executors, administrators and assigns, that in the event that he shall survive her, then and in such case, he will not participate as an heir, in any estate, real or personal, of which she may die the owner, nor make any claim thereto, as heir or surviving husband, to which he would be entitled under the laws of succession, except for this agreement, and he, for himself, his heirs executor or administrator, hereby expressly waives, releases, relinquishes, and quitclaims, any and all right, title, or interest in any estate, real or personal, of which the said — Walker may die the owner."
The appellees offered testimony, which was objected to, tending to show that, on the first visit to the attorney's office, the parties stated the terms of an oral antenuptial agreement, which the attorney embodied in the written instrument that was executed by the parties on the occasion of the second visit to the attorney's office, after the marriage.
The appellees, in their effort to establish an enforcible contract depriving appellant of an interest in the estate of his deceased wife, are confronted by two statutory provisions. The first of these is Section 3154, Code of 1897 (Section 10447, Code of 1924), providing that, when property is owned by the husband or wife, the other has no interest therein which can be the subject of contract between them. Under this statute, the written contract executed after the marriage is void and wholly ineffectual to accomplish their purpose. The other is the statute *Page 979 of frauds (Section 4625, Code of 1897 [Section 11285, Code of 1924]), providing that no evidence of a contract in consideration of marriage is competent unless it be in writing and signed by the party charged. This is a statute of evidence, and relates only to the method by which the contract must be proved. Rueberv. Negles, 147 Iowa 734. It imposed upon appellees the necessity of establishing the claimed antenuptial contract by written evidence.
The appellees meet the situation by the contention that the written instrument executed after marriage evidenced a prior and antenuptial parol agreement, and that thereby competent proof under the statute of frauds was made of a contract entered into before marriage, which, therefore, did not come within Section 3154. They rely upon the case of Kohl v. Frederick, 115 Iowa 517. It was there said:
"That an antenuptial oral agreement as to property rights may, after marriage, be evidenced by a written memorandum, which is competent as between the parties, is practically conceded by the appellant, and is well settled by the authorities."
In that case, the written contract executed after marriage recited that the parties "have agreed before marriage and do now agree" that the survivor of them should not "inherit any claim, right or interest in or to the estate of the other," and it was conceded that the writing evidenced a parol antenuptial contract. The contention there was over the construction of the contract, and particularly the word "inherit."
In Frazer v. Andrews, 134 Iowa 621 (11 L.R.A. [N.S.] 593), the question arose over a written contract made after marriage, which did not refer to a prior and antenuptial parol contract. It was alleged in the petition that the writing was made subsequent to marriage in pursuance and to preserve written evidence of an oral agreement made before marriage. We held, after an extensive review of authorities, including Kohl v. Frederick, supra, and other Iowa cases, that a demurrer to the petition should have been sustained, and said:
"Looking to our statutes for a guide, we are of the opinion that, unless the agreement made after marriage recites that it is to furnish evidence, or is in consideration of a previous antenuptial contract, it is within the statute of frauds, or prohibited by Section 3154 of the Code, and cannot be enforced." *Page 980
Appellees insist that the contract in question conforms to this rule and meets this condition, in that it recites the consideration of a prospective marriage to be the covenants and agreements of the contract, and, therefore, in effect recites that it is to evidence, or is in consideration of, an antenuptial agreement.
In our opinion, the written instrument in question merely purports on its face to be what, under the evidence that it was executed after marriage, it clearly is not in fact, an antenuptial agreement. It does not in terms say that it was to evidence a parol antenuptial agreement, or that it was entered into in consideration of such a prior agreement. It does not say that there was, or in any manner refer to, an antenuptial contract. It is true, a written contract is but the evidence of the actual agreement, the meeting of the minds of the contracting parties. But the difficulty in the way of any application of that doctrine in aid of appellees is that, when the writing alone is relied upon to establish a prior parol contract, it does not on its face establish a contract entered into before marriage, when it is shown that it was actually executed after marriage. So far as appears from the writing itself, the minds of the parties did not meet on the terms there set out until the time of its execution, which was after the marriage. The proof that there was an antenuptial contract is still to be made by parol evidence, which cannot be received because of the statute of frauds.American Oak Leather Co. v. Porter Bros. Hackworth, 94 Iowa 117; Allan v. Bemis, 120 Iowa 172; Frazer v. Andrews, supra.
It is true, the answer setting up the written instrument would not have been demurrable; for, as we have noted, the instrument purported to have been executed before marriage, and was alleged to have been so executed. The question here, however, arises upon the proof; and when it is shown that the instrument was in fact executed after marriage, in the absence of a recital therein that it was to furnish evidence or was in consideration of a parol antenuptial agreement, it fails in itself to furnish written evidence of such an agreement. The appellees were then put to parol evidence to establish the fact that there was an agreement of the contracting parties before marriage, and this the statute of frauds forbids.
The situation is this: If the writing itself establishes an oral antenuptial agreement, the contract is not within the statute of *Page 981 frauds, and Section 3154 is not violated. But if parol evidence is required to establish that there was a prior and antenuptial contract, that there was a meeting of minds on the terms of the contract before marriage, this is in contravention of the statute of frauds, and the parol evidence is inadmissible, and the writing itself, executed after marriage, comes under the prohibition of Section 3154.
Annotations in connection with the publication of the opinion in Frazer v. Andrews, supra, in Lawyers Reports Annotated, show the doctrine there announced to be in accord with the great weight of authority.
We are unable to distinguish the case at bar, and are of the opinion that it falls within the rule of the Frazer case, and that the conclusion of the court below cannot be sustained. The judgment, therefore, is — Reversed.
STEVENS, FAVILLE, and ALBERT, JJ., concur.