The court is divided on this case. I am not of the majority, but as the preparation of the opinion was originally assigned to me, will attempt to state the views of the majority and later dissent. *Page 721
Wallace J. Williamson and Ellen Blair were married in 1917. Prior to the marriage they executed a contract, adjusting their marital property rights. He died in 1929, testate. The will limited his wife to the amount specified in the antenuptial contract, except as to some household goods, live stock, automobiles, etc. She renounced the will, and demanded of his estate in this suit the portion allotted her as wife by law. The defendants relied on the antenuptial contract. The circuit court found in her favor and cancelled the contract. The defendants appealed.
The majority of the court refuses to accept any of the testimony of plaintiff in her own behalf; consequently in preparing a general statement of the evidence, I have omitted any fact which depends on her evidence alone.
About 1884, Mr. Williamson, then 39 years of age, a handsome widower with four children, and a resident of Catlettsburg, Kentucky, came to what is now Mingo County, West Virginia, and engaged in the timbering business. There he met Ellen Blair, then about fifteen years old, illiterate but very beautiful. He fell in love with her, and she gave him her heart. He courted her ardently, openly and aggressively, presented her to his brother's family as his intended wife, and started her in school. Either through lack of application or of interest, Ellen made no educational advancement. In 1885, while on a trip to Catlettsburg, he married a Miss Clinefelter. He later explained to his cousin, Jane Evans, that the reason he did not marry Ellen (in 1885), was because she was uneducated. Within two months after his second marriage, he commenced sending letters to Ellen, confiding to his messenger, Elijah Ferrell, that since his first wife died he had loved no woman but Ellen. Shortly afterwards he virtually abandoned his wife and established Ellen in a home at Naugatuck on his timber operation, where he spent most of his time and where she served and ministered unto him with intelligence, loyalty and devotion almost continuously for the following thirty years — a wife in everything but name. She described her life at Naugatuck in these laconic sentences: "I stayed at home and made garden and raised chickens, and tended to the cows and cooked and *Page 722 washed and ironed. * * * I done all that was to be done and what he (Mr. Williamson) told me to do and what I thought would satisfy him. * * * I worked to his advantage. * * * I tended to him day and night (during illness) and done everything a woman could do." Disinterested witnesses confirmed this description and testified without contradiction to acts and conduct by her, which materially promoted his logging business. She said of him he was "as kind as he could be" and gave her no occasion to doubt his love. The record discloses no stain upon her life except the scarlet letter she wore because of him. He was a shrewd business man, but his education was limited. Dr. Tunis Nunemaker, a witness for defendants, was their physician at Naugatuck, and was intimately acquainted with them for years. He testified that they were congenial and were interested in and devoted to each other.
In 1912, Mr. Williamson's second wife died, without issue. In January, 1915, he conveyed to plaintiff a tract of 103 acres at Naugatuck in satisfaction of all claims she had against him, whether for services rendered or to be rendered "or on account of any agreement, promise, default or undertaking whatsoever made by him," except a note of $3,500.00 he owed her for borrowed money. If this settlement indicated a breach, it was soon healed by his solicitude for her during an attack of appendicitis. He took her to a hospital in Columbus on June 5, 1915, for an operation and remained with her until she was discharged on July 4th. Shortly after their return to Naugatuck he failed in health and was taken to Denver, Colorado. Sometime after returning from Denver he began arrangements to marry her. He requested William Dameron, deputy county clerk, who issued the marriage license to keep the matter a secret, saying his sons were "raising Cain about him wanting to get married to Ellen, but he thought he owed it to her." The marriage was performed on January 3, 1917. On January 2nd, he had her sign the contract in question, agreeing that in consideration of $1,000 cash and $20,000 to be paid her upon or before his death, she would relinquish all the claims against his estate to which she would be entitled as his wife. He was a kind *Page 723 and "a very devoted husband" said the Honorable M. Z. White, a witness for defendants. Miss French, a trained nurse who attended Mr. Williamson continuously during the last twelve years of his life, testified as a witness for defendants that Mr. Williamson and plaintiff seemed "to be perfectly contented with their marriage lot," and that he was very solicitious about her welfare. His estate is valued at about one and a half million dollars.
The plaintiff testified that she could not write her name and did not sign the 1917 contract; that she had no memory of such paper being read to her; that if it was read to her, she did not understand its terms (they were phrased in technical language); that she did not remember ever seeing or hearing of the contract until after her husband's death; and that at the date of the alleged contract she did not know the extent or the value of Mr. Williamson's property.
The record shows that plaintiff has remained practically as illiterate as when Mr. Williamson abandoned her education in 1885. She can read only with great difficulty and if she could sign her name in 1917 it was done mechanically. It is proved, however, by witnesses of integrity that she went through the motions of signing the contract, and that "a brief statement as to the main terms of the contract" was made to her at the time. It is also proved that in after years she recalled its provisions in a general way.
Equity ordinarily does not permit a man to drive a hard bargain with his prospective wife, without full disclosure of all the material facts. The law is clearly stated in Madden on Domestic Relations (the latest work thereon), section 73, as follows: "Persons about to marry are considered as occupying a relation of special trust and confidence toward one another. The usual consequence of confidential relationship follows, that the burden is upon the party, here the husband or his heirs, who profited by the contract, to show that it was entered into only upon a full disclosure of all the material facts. The most material fact, of course, is the extent of the property of the husband in which the wife gave up her rights. The burden is not upon the wife to inquire into this fact and the fact that she did not take advantage of her opportunities *Page 724 to obtain information about it does not prevent her from assailing the settlement. The husband must have disclosed it, unless the wife actually knew it from other sources. * * * If the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises a presumption of fraud or concealment, throwing upon those claiming in the husband's right the burden of disproving the same."
These principles are so deeply imbedded in American jurisprudence that extensive citation of authority seems unnecessary. See Hinkle v. Hinkle, 34 W. Va. 142, 152-3,11 S.E. 993; Dehart v. Dehart, 109 W. Va. 370, 372, 154 S.E. 870,871; Cole v. Blankenship, 30 F.2d 211, 9 Rawle C. L., subject Dower, sec. 40; 19 C. J., subject Dower, sec. 149, 151; Schouler on Domestic Relations (6th Ed.), sec. 513.
The majority of the court does not question the above statement of the law but excepts this contract therefrom on the following grounds: (1) that while executed on January 2, 1917, the antenuptial contract was entered into verbally at a conference held about October 1, 1916; (2) that no engagement to marry is shown to have existed prior to that conference; and (3) that without such an engagement the parties dealt at arm's length at the conference, and Mr. Williamson was under no obligation then to make any disclosures to her. This position is based on the following evidence: About October 1, 1916, Mr. Williamson had two of his closest personal friends, Dr. Nunemaker and Alexander Bishop, attend a conference between him and plaintiff, explaining that they wanted to change their mode of living and agree either to separate or to be married. Mr. Williamson and plaintiff conferred privately (for the most part) and then reported, according to Dr. Nunemaker "that they had agreed to fix this matter up between themselves." Mr. Bishop testified that plaintiff further said, "I am not to have or interfere with any of his property and he is not going to interfere with any of mine, we will both control our properties separately." The majority relies on Martin v. Collison,266 Ill. 172, 178-9, 107 N.E. 257-260, (and related cases) which held: *Page 725
"The contract recites that the parties 'are about to enter into a contract of marriage.' So far as appears from that document, no marriage agreement had been entered into before it was signed, and for aught that appears from that instrument its execution was a preliminary step to the engagement to marry. Whatever may be the usual custom as to the time antenuptial agreements are made, it is not universally true that they are made after betrothal. It may well be, and undoubtedly is true, that a man and woman may contemplate marriage but one or both of them have reasons why it is desirable, not only before entering into the marriage relation but before there is any agreement to marry, to settle the rights of each in the estate and property of the other by an antenuptial agreement, and this step precedes and is preliminary to the contract or marriage. In cases of that character there will be no confidential relation existing until after the contemplated contract is made, and the law governing the rights of the parties under such contracts would be the same as is applicable to contracts entered into by persons between whom there exists no confidential or fiduciary relation."
The majority therefore reverses the decree of the circuit court and dismisses the plaintiff's bill.
Reversed; bill dismissed.