1. An agreement made upon consideration of marriage, when the marriage is "the end to be obtained or purpose to be accomplished " and not a mere incident to the agreement (27 C. J., p. 127, sec. 5), is invalid under section 5 of the Statute of Frauds, unless in writing. See Lloyd v. Fulton, 91 U.S. 479,23 L. Ed. 363; annotation 10 A.L.R. 322. The oral agreement reached at the October, 1916, conference between the plaintiff and Mr. Williamson, according to the majority of the court, was such an agreement. Therefore, in order to reach its conclusion the majority has now treated as valid an agreement which the law has refused to recognize since the year of 1676. This treatment *Page 726 might be justifiable if all the covenants of the written contract of January 2, 1917, were included in the October agreement. No witness even intimates that they were. The only property arrangement shown to have been reached at the October conference, was that Mr. Williamson would control his property and plaintiff would control hers. Not one word is reported from them about the disposal of the property when the control of either should cease (i. e. at death), or about the relinquishment of dower. Her mere assent that Mr. Williamson should control his property does not even imply such a relinquishment. See generally Hinkle v. Hinkle, supra. As far as the record shows, the question of dower rights was mentioned in her presence for the first time on January 2, 1917. The most the record warrants the majority in saying of the October conference, is what Alexander Bishop (a witness for defendants) who was present, said of it: "I think there is where your marriage contract started." Shortly after the October conference, Mr. Williamson had S.D. Stokes, an attorney of the city of Williamson, prepare an antenuptial contract between himself and plaintiff. Two weeks before the marriage, John F. Hager, an attorney of Catlettsburg, Kentucky, and chief legal advisor of Mr. Williamson, was called in consultation by him, relative to the contract. Hager did not approve the Stokes draft and on December 23, 1916, completed the one which was executed. The trial chancellor well said, the preparation of the contract would have been "a vain act" if the parties had not theretofore agreed to marry. The Hager draft itself (prepared ten days before it was executed) contains the recital, "Whereas, a marriage is intended to be shortly hereafter solemnized between the said Ellen Blair and Wallace J. Williamson." Besides, Alexander Bishop (defendants' witness) testified that he was told of the intended marriage by Mr. Williamson two weeks before it took place. Therefore, even if the parties had not agreed to marry at the "start" of the marriage contract in October, 1916, they had agreed to marry before its completion in January, 1917. I see no reason to exempt this completed contract from the restrictions surrounding the usual contracts between bethrothed couples. *Page 727
Plaintiff's position, however, does not depend upon proof of an engagement to marry prior to the execution of the contract. A confidential relation may exist between a man and a woman under other circumstances than a betrothal. Beach, The Modern Law of Contracts, sec. 825, says flatly that the law recognizes such a relation in "all cases in which confidence is reposed by one party in another." This declaration was originally made by Sir Samuel Romilly, one of counsel in Huguenin v. Basely, a leading English case decided in 1807, and reported in 14 Ves. Jr. 273 (285-6) and in 1 White Tudor Leading Cases in Equity (8th Ed.), 259 (265). Thirty years later, Lord Chancellor Cottenham recalled (with pleasure) the Romilly declaration and pronounced it the law, in Dent v. Bennett, 4 My. Cr. 269, 277, 41 English Reports 105, 108. It was elaborated in 1852 by the Vice-Chancellor, Sir George J. Turner, in Billage v.Southee, 9 Hare 534, 539, as follows: "No part of the jurisdiction of the Court is more useful than that which it exercises in watching and controlling transactions between persons standing in a relation of confidence to each other; and in my opinion this part of the jurisdiction of the Court cannot be too freely applied, either as to the persons between whom, or the circumstances in which, it is applied. The jurisdiction is founded on the principle of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied, whatever may be the nature of the confidence reposed or the relation of the parties between whom it has subsisted. I take the principle to be one of universal application, and the cases in which the jurisdiction has been exercised — those of trustees and cestui que trust, guardian and ward, attorney and client, surgeon and patient — to be merely instances of the application of the principle." This conception of the extent of the principle has been accepted since then without question (so far as I am advised) both in England and the United States. See 1 Story Eq. Juris (14th Ed.), sec. 370; 2 Pom. Eq. Juris (4th Ed.), secs. 956 and 963; 1 Beach Modern Eq. Juris., sec. 125; Adam's Eq. (2nd Am. Ed.), 184; Lawson on Contracts (2nd Ed.), sec. 274; Kerr on Fraud and Mistake (6th Ed.), ch. 111; 26 C. J., p. 1158, sec. 72; 12 Rawle C. L., p. 232, sec. 5. *Page 728 Martin v. Collison, (relied on by the majority) is materially different from the instant case in that the relations of the parties in that case had been merely casual prior to their agreement. The same situation existed in the related case of Inre Malchow's Est. (Minn.), 172 N.W. 915, 917, cited in the brief of the defendants. Note the findings of the court there: "The parties were comparative strangers when they married. * * * Apparently there was an entire absence of professions of affection on either side. * * * He was not her superior in intelligence or worldly experience. The element of control over her actions was not present, and there was an absence of long association resulting in the repose of her entire confidence in him." The court naturally upheld the contract under those circumstances, but took pains to state the very principles which I contend for here, as follows: "The outcome of actions of this character depends on the presence or absence of influence acquired and abused or confidence reposed and betrayed. If those elements are present, there can be no valid contract between two persons except after a full and fair communication and explanation of every material particular within the knowledge of the one who seeks to uphold it against the objections of the one who trusted him." Here, despite Mr. Williamson's broken promise to plaintiff in 1885, the record shows (a) that he loved her devotedly and thereafter gave her no cause to doubt his love, and (b) that her confidence in him was quickly restored after his one defection, and continued unchanged (except perhaps in a few moments of dejection) until his death. The union between them was so strong that Dr. Nunemaker (defendants' witness) said of them to Mr. Bishop at or about the October conference, if people "expected them to separate their relationship entirely, they were fooling themselves." In Leighton v. Orr, 44 Iowa 679, 689, the court presumed that confidential relations "must have existed" between a man and a woman who had lived together unlawfully for years. The woman in that case was notoriously immoral and her influence over the man was acquired solely (according to the opinion) "by ministering to his passions." In Dean v.Negley, 41 Pa. 312, 318, the court said: "There can be no *Page 729 doubt that a long-continued relation of adulterous intercourse is a relation of great mutual influence of each over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life, or very close observation of persons around us, in order to reveal the fact." A like case is Shipman v. Furniss, 69 Ala. 555, in which many authorities are cited. If confidence was presumed as a matterof law to have existed in those cases, a fortiori must we say it existed between Mr. Williamson and plaintiff whose continued association (though illicit) was one of mutual devotion. I concur fully with the trial chancellor who held that this association "created a relationship casting upon the decedent duties with respect to any antenuptial contract they might enter into equivalent to those which equity requires when the parties are engaged to each other." There is no difference in equity in the effect of the confidence engendered by this long association, and that by a betrothal. No matter how confidence arises, it must not be used to gain an advantage over the one confiding. "Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed." Pomeroy, supra, sec. 956. A mere comparison of the sum provided in the contract ($21,000) with the value of plaintiff's expectancy as Mr. Williamson's wife (at least $400,000, as will be shown later) demonstrates that he obtained a tremendous advantage for his estate by means of the contract.
2. The circuit court found that the domicile of Mr. Williamson at the time of his death was in Kentucky. Upon his marriage in 1917 he moved to a home in South Williamson, Kentucky, where he resided until his death, except during time spent in Florida where he also had a home. The defendants proved that for many years prior to his last marriage *Page 730 he resided and voted in West Virginia; that after moving to South Williamson (Kentucky) he with the plaintiff continued to vote in the city of Williamson (West Virginia); and that his business office remained there. Mr. Pinson (Plaintiff's witness) testified that Mr. Williamson claimed West Virginia as his home while residing in South Williamson. Hon. M. Z. White testified that the city of Williamson was promoted by and named for Wallace J. Williamson; that he took great pride and interest in the upbuilding of the city, giving liberally for all public purposes, and that the witness was told by Mr. Williamson that he had gone to South Williamson merely for the purpose of developing it, and that he expected to build himself a home as well as a vault to be buried in on Reservation Hill in the city of Williamson. His will, written in Florida in 1922, opens with this statement: "I, Wallace J. Williamson of Williamson, Mingo County, West Virginia." The finding of the circuit court was largely due to the residence in South Williamson, and a clause in the will which gives to plaintiff the motor vehicles, etc., which might be on the premises of the home at South Williamson "or (the will proceeds) other premises occupied as our permanent home at the time of my death." The circuit court construed this clause as calling South Williamsonson his permanent home; but it seems to me that the "other premises" is the one designated as the permanent home, rather than South Williamson. This construction is consistent with his intention expressed to Mr. White and with the explicit declaration opening the will — that he was "of Williamson, Mingo County, West Virginia." It is clear to me that Mr. Williamson considered his residence in Kentucky as temporary and regarded the city of Williamson as his permanent domicile. The law is settled that legal residence or domicile is fixed by intention, and that leaving an established domicile for a temporary purpose with intention to return, does not effect a change of domicile. 19 C. J. subject Domicile, sec. 19; Maslin v. Hiett, 37 W. Va. 15, 16 S.E. 437; Croop v. Walton, 199 (Ind.) 262, 157 N.E. 275, 53 A.L.R. 1386, and authorities there cited. *Page 731
3. Accountants and experts on value have established without controversion that Mr. Williamson was easily worth one and one-half million dollars in 1917, his personal property alone being rated at one million and thirty-six thousand dollars. The plaintiff, as his wife in 1917, would have had an expectancy in his estate approximating $400,000, under the laws of West Virginia. The provision of $21,000 in the antenuptial contract is so unreasonably disproportionate to $400,000 as to require no comment. The cases cited by defendants against disparity are so different from the one at bar that they have no persuasive force, no matter what dicta they contain. For example, defendants' brief quotes at length from Suhor v. Gooch, 244 F. 361. In that case the antenuptial contract provided the wife with $50,000 when her expectancy in his whole property amounted to $70,000 to $80,000. The court found that "the marriage was one of convenience with a large factor of mercenary consideration rather than of sentimental attachment;" that the wife was educated and intelligent; and that there was "positive and unassailed proof of full disclosure" of the value of the husband's property. Again, several pages fromBibelhausen v. Bibelhausen, 159 Wis. 365, 150 N.W. 517, are also quoted. That case is long and time is fleeting. My interest flagged when the opinion disclosed that while the antenuptial contract gave the wife $500.00, the husband gave her by will the household goods absolutely and $15.00 a month for life; that his attorney exercised "care ex industria" in the execution of the contract "to see that she was not imposed upon;" that his entire estate was valued at $13,000; and that "the great bulk of the property possessed by Mr. Bibelhausen at the time of his death was acquired after his marriage with respondent." It would be supererogation to say more than that all the material facts in Suhor v. Gooch and Bibelhausen v.Bibelhausen are different from the material facts in the instant case.
Courts have sometimes upheld a disproportionate contract without full disclosure when the parties married late in life, if the provision was adequate for the wife's confort, on the ground that the wife would otherwise reap where she had *Page 732 not sown. See Appeal of Neely, 124 (Penn.) 406, 16 A. 883. In the instant suit, however, plaintiff had given Mr. Williamson thirty of the best years of her life. She had "borne with him the sacrifice and labor of accumulation." The trial chancellor details her part as follows: "She looked after the home and assisted in the store. When Mr. Williamson went to Catlettsburg with timber she would give the men instructions as to their work, provide them with tools and look after the interests of Mr. Williamson as best she could during his absence. There is nothing in the record to indicate that the children or relatives of Mr. Williamson assisted him or had any part in assisting him to accumulate his wealth, but on the contrary the evidence clearly shows that Ellen Blair did much to assist him in rising to the position he held in the financial world at the time of his death. * * * That Ellen Blair gave her life completely to Wallace J. Williamson cannot be contradicted." It is suggested that the 103 acres he conveyed her in 1915 extinguished all his prior obligations to her. That conveyance may be said to satisfy all strictly financial claims. But it did not purport to recompense her for thoughtful care of him in health, and loving service to him in sickness — care and service comparable to that of the most devoted wife, and for which no charge was reckoned. Dr. Nunemaker (defendants' witness) testified that at the October, 1916, conference the parties discussed an agreement "whereby he (Mr. Williamson) could do something for her, provide for her in some way" in case they separated. This discussion demonstrates that Mr. Williamson did not consider himself discharged from all obligations to plaintiff by the 1915 conveyance.
In passing it may be pertinent to say that I would not appear as an apologist for the illicit conduct of the plaintiff. However, I remember her youth and inexperience when it began. I am not unmindful that if it commenced before his second marriage, it was under promise of marriage to her; and if afterwards it was under a great love which was then hopeless. In either event, I will let some other "cast the first stone." *Page 733
The right of dower is of such antiquity that its origin cannot be traced. It was recognized in the great charter of 1215. It was appreciated so highly by the early writers on the common law that Lord Bacon is accredited with saying (in 1641) it was "the common by-word in the law, that the law favored three things; (1) life, (2) liberty, (3) dower."Speckman v. Speckman, 15 Ohio App. 283, 286. 9 Rawle C. L., subject Dower, sec. 4. From those early times to the present it has been most highly esteemed and carefully guarded by courts and statutes. The amount of dower a wife is to receive from her husband's estate is not fixed by the husband, or the heirs, or the courts, but by the statute. What the husband or the heirs or the courts may deem adequate for a wife cannot primarily defeat the statute. Her assent thereto is requisite. The expression of the leading authorities is that courts will "rigidly scrutinize" (Schouler, supra) settlements in lieu of dower, and ordinarily will not permit a man to bind his proposed wife to take less than the statutory interest unless she has full information of what she is doing. Also the burden is imposed on those who would profit by the settlement to show that the woman had that information. The defendants here offer little evidence on that subject, depending mainly on plaintiff's statements. She said of Mr. Williamson's property, "Of course I knew he had a little more than anyone else, or I thought he had, but I didn't know in what way." She named several tracts of real estate which he owned at that time but denied knowing their value. She knew that he had started a bank in the city of Williamson, but disclaimed any information of how much bank stock or other corporation stock he held, stating that he was not in the habit of discussing his business with her. Her testimony on this subject is not controverted in anymanner. Her inability to appreciate values is corroborated by Miss French (defendants' witness) who testified after intimate association with plaintiff for twelve years that she understood numbers and could count only to a limited extent, and that when the witness first met plaintiff (in 1917) she could not figure out the change due her from a twenty-dollar bill, on a small purchase. Plaintiff's ignorance of the extent of Mr. Williamson's *Page 734 holding might appear singular in view of their intimacy, were it not for the fact that he was secretive about his business affairs and none of his closet friends and business associates had any definite idea of the extent of his estate in 1917. Alexander Bishop, who had been closely associated in business with Mr. Williamson for thirty years, explained his ignorance thereof by saying that Mr. Williamson "never talked about his business and his stock * * * he kept it as his own secret." If his confidential business associates had not been told the extent of his holdings, I see no reason for inferring that he had told plaintiff. "The mere fact that an intended wife who signs an antenuptial contract knows in a general way that the husband is reputed to be a wealthy man and to own farms and an interest in banks is not sufficient to meet the requirements of the equitable rule of fair disclosure or charge the wife with such knowledge of the nature and value of his property as to render an unfair contract binding upon her." In re Enyart,100 Neb. 337, 160 N.W. 120. In a similar case, the supreme court of Illinois said: "The circumstance of his reputed wealth is entitled to but little weight as tending to prove that she knew the nature or value of his property. The reputation of persons as being rich or wealthy is too indefinite and general to charge those who deal with them, with knowledge of the kind and amount of property they are possessed of." Hessick v. Hessick,169 Ill. 486, 493, 48 N.E. 712, 715. Mr. Williamson's real estate and the bank stock constituted just about one-half of his wealth in 1917, and it is not even shown that she knew the value of those items. This observation is confirmed by the trial chancellor who said: "It is true that she knew he had some real estate and was President of the First National Bank, but there is not one scintilla of evidence to indicate that she had the slightest idea as to what he was actually worth or what his property consisted of."
There is also no evidence that plaintiff even knew what the law would secure to her as a wife, or that she was informed she would receive less under the contract than under the law. "It cannot be denied," said the supreme court of Kentucky, *Page 735 "but that it is the settled rule that the prospective wife, in contracts of this character, in order to be bound thereby, should, before entering into the contract and at that time, be apprised of the nature and extent of her prospective husband's estate and the value of her marital rights therein which she by its terms is surrendering." (Italics mine). Stratton v. Wilson,170 Ky. 61, 67, 185 S.W. 522, 525. JUDGE LIVELY recognized this requirement in Dehart v. Dehart, supra, saying: "The courts scrutinize an antenuptial agreement to ascertain if it be fair in its provisions for the wife, and that she entered into it with full knowledge of the fact of her right, and without the exercise of undue pressure or influence upon her."
The plaintiff was contradicted as to her ignorance of the provision of the contract in recent years by four witness who are residents of other states, and had separately conversed with plaintiff. One of these is the wife of a defendant, and the other three are admitted friends of the defendants. These four witnesses may be worthy of all credence. On the other hand, had plaintiff been given to falsity, I am sure that her reputation would have overtaken her in the record. There is nothing there against her reputation for veracity, and the trial chancellor did not treat her as untruthful. Ordinarily we leave it to the trial court to pass upon conflicts in the evidence. If the testimony of the several strangers from the other states is to be accredited, however, (and the majority has said so), that evidence in no way affects what took place prior to and at the execution of the contract, and still does not sap the plaintiff's position. The facts that plaintiff executed the contract knowing that it disposed of her prospective right of dower, and that she remembered the contract in after years, do not exculpate Mr. Williamson. Said Lord Eldon in Huguenin v. Basely, supra, "The question is not whether she knew what she was doing, had done, or proposed to do, but how the intention (to do) was produced; whether all that care and providence was placed round her, as against those who advised her, which from their situation and relation in respect to her, they were bound to exert on her behalf." The record discloses "no care and providence" *Page 736 placed around plaintiff by Mr. Williamson as against his own influence over her. "If influence is acquired," said Story,supra, section 431, "it must be kept free from the taint of selfish interests and cunning and overreaching bargains."
It was suggested in conference by the majority that because Mrs. Williamson was contradicted by the four strangers (to this court) she did not come into equity with clean hands. Upon an examination of the law, however, I find the clean hands rule is "confined to misconduct in regard to the matter in litigation, so that it has in some measure affected the equitable relations between the parties, arising out of the transaction."Foster v. Winchester, 92 Ala. 497, 9, So. 83, 84. Accord: Bias v. Bias, 109 W. Va. 621, 155 S.E. 898; Ihrig v. Ihrig, 78 W. Va. 360,365, 88 S.E. 1010; Heck v. Morgan, 88 W. Va. 102,106 S.E. 413; Kinner v. Ry. Co., 69 Ohio St. 339, 344-5,69 N.E. 614; Trice v. Comstock, 121 F. 620, 628; Bispham, Principles of Eq. (7th ed.), section 42; Beach, Modern Eq. Juris., section 16; Story's Eq. Juris. (14th ed.), section 100; Pomeroy's Eq. Juris. (4th ed.), section 399. The matter in litigation is the execution of the contract. The contradictions of plaintiff's later statements by the four strangers may imply misconduct on her part, but it is not misconduct connected with the preparation or execution of the contract, or mis-conduct which is shown to have affected in any way the equitablerelations between herself and Mr. Williamson or his representatives. Consequently the clean-hands rule does not apply.
It is within the province of the majority to scrutinize the testimony and conduct of the plaintiff both prior and subsequent to the contract as it has done. But a primary duty rests on the majority to scrutinize the conduct of Mr. Williamson, which it apparently has not done. Even a casual examination of the facts leading up to the execution of the contract discloses (1) that Mr. Williamson desired to pay the debt he had so long owed to plaintiff and to society, but at a heavy discount to himself and his estate; (2) that he had astute counsel prepare the contract with the sole purpose of securing that advantage; (3) that plaintiff had no part in *Page 737 the preparation of the contract; (4) that he surrounded himself with friends and counsel when he presented the contract to her for execution; and (5) that she was alone, over-wrought, uncounselled, and without information of the extent of the prospective rights she signed away. The trial chancellor specifically found: "There is every reason to believe that every advantage was taken of the complainant in and about the preparation and execution of the contract. In answer to the question propounded 'was the contract fairly entered into'? this court answers it was not."
The fact that plaintiff may have greatly desired the marriage did not give Mr. Williamson the right to ignore her lack of information. It may be that she even would have accepted any terms dictated by him as the price of marriage; but neither that probability nor the illicit relation of the parties prior to their marriage makes their marriage settlement any exception to the general rule. Such an idea, declared Judge Cabell inCoutts v. Greenhow, 2 Munf. 363, 372, 5 Am. Dec. 472, was "supported neither by authority nor reason." Why ignore this violation by Mr. Williamson of the equitable principles prescribed by all writers on jurisprudence, and adopted and pronounced by this court? Why say we will "scrutinize" contracts of this nature if such overreaching (as this scrutiny reveals) is to be ignored? Is the statement more rhetoric? The excuse suggested is that plaintiff in her own right was worth some thirty-five or forty thousand dollars in 1917, and that the addition thereto of the twenty-one thousand dollars provided in the contract makes an amount adequate for her needs. That may be correct. But a strong objection to that excuse is, if adequacy is made the test, then we have an unstable rule. Adequacy varies as conditions change. What one court might consider sufficient, another might deem insufficient. The court would attempt to judge of adequacy from the standpoint of the woman, which would certainly be unsatisfactory to the court as well as to the woman. This test is also incomplete. It complies with only part of the established rule which was recognized by JUDGE LIVELY in Dehart v. Dehart, supra, and which requires in addition to *Page 738 adequacy, that the contract be scrutinized to ascertain if the wife "entered into it with full knowledge of the fact of her right and without the exercise of undue pressure or influence upon her." The test prescribed in Dehart v. Dehart and by Pomeroy, Story, and all the leading authorities is complete. How much fairer and more satisfactory to adhere strictly to the complete rule and permit the woman uninfluenced to fix the sum she deems adequate for the sale of her own right, after she has had full information of the value of that right.
The case of Slingerland v. Slingerland, (Minn.) 132 N.W. 326,327 is comparable to this one on all material points. The facts, as stated in the opinion, were as follows:
"Plaintiff and defendant were married June 18, 1890. Defendant was a widower 67 years of age, and owned property worth $225,000, and was carrying on a prosperous business bringing in large profits. Plaintiff was 23 years of age and possessed of little property, except possibly 240 acres of land, for which defendant had before that time made a deed to her, the delivery of which deed was a matter of dispute at the trial. For several years prior to the marriage plaintiff and defendant had maintained illicit sexual relations with each other, and at the time the contract was executed plaintiff was pregnant with child begotten by defendant. After she so became pregnant plaintiff greatly desired defendant to marry her, and urged him to do so. Defendant consented to such marriage, and with a view to the same plaintiff and defendant, on May 20, 1890, went together to the office of defendant's confidential counsel in Winona, who at defendant's request had prepared the antenuptial contract in controversy and made three copies thereof ready for signature, and plaintiff and defendant then executed and acknowledged such contract. The nature of the contract was at this time explained to plaintiff by the attorney who had drawn it, its import was then understood by her, and she then knew that by its execution she would, in case she survived defendant, be excluded from any right in whatever property he might own at the time of his death in consideration of the sum of $5,000 to be paid to her as a condition of her executing such contract. Plaintiff then knew that defendant was wealthy and the owner of much *Page 739 valuable real estate and personal property, but was not informed by defendant as to the full amount of his property or as to the details of the same; nor was she informed of the exact nature or extent of the interest that she as a widow would be entitled to under the law in the property of which defendant might die seised nor did she make any inquiries as to these matters. Plaintiff executed the contract freely and without objection, and without urging on the part of defendant or his attorney; but she then was, owing to her condition and the fact she had not been married to defendant, under considerable nervous strain and greatly desirous of a marriage with defendant, as he then well knew, and had confidence in the good intentions of defendant and his affection for her. She had no person of business judgment and experience with whom to advise in reference to such contract. Shortly after its execution the marriage took place."
In the instant case, the plaintiff was not pregnant, but the pregnancy of Mrs. Slingerland was not given major consideration by the Minnesota court, which held:
"These facts, without actual misrepresentations, urgings, or duress, are sufficient, in our opinion, to justify a conclusion that plaintiff's execution of the contract was not her own free act, but in reality the act of defendant done by her pursuant to his will. * * * True, mere inadequacy of consideration alone is not generally a ground for setting aside a contract. But it shows the unconscionable character of the contract, and raises a presumption of fraud, which may be overcome by evidence. The relations between the parties were confidential. Clearly the burden rested upon defendant to overcome this presumption, to show there was no fraud or concealment, and that plaintiff knew the extent, character, and value of his property and the nature and extent of her rights as his wife and widow. This burden was not sustained by proof that plaintiff knew he was wealthy."
I see no way to differentiate the instant case from theSlingerland case. I see no reason to except the instant case from settled equity principles, and would hold that the defendants *Page 740 have not sustained the burden imposed upon them by law.
4. Defendants also contend that as plaintiff accepted the $1,000 cash mentioned in the antenuptial contract, she is estopped after the lapse of so many years to have the contract set aside. At the time the contract was signed, she and Mr. Williamson executed deeds exchanging certain properties. She testified that she understood the $1,000 was paid to her to make the exchange. The circuit court found specifically in her favor on this evidence, and that no estoppel arises. I cannot say the finding is wrong. However, since the $1,000 was accepted by plaintiff, I would deem it just for the administrator to charge her with that sum and its accrued interest.
I would modify the decree of the circuit court as to this $1,000 and also as to the domicile of Mr. Williamson at the time of his death, and so modified would affirm it.
Judge Maxwell authorizes me to say that he concurs in this dissent.