Young v. Hicks

Barnard, P. J.:

By chapter 375, Laws of 1849, all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.

The agreement in the present case is a good ante-nuptial agreement even under the case of Curry v. Curry (10 Nun, 366). It makes a provision in lieu of dower and of the rights of the widow in the husband’s estate. The principle decided in that case that such a consideration must be proven to uphold an agreement made in contemplation of marriage does not seem to be supported by any good reason. It was an agreement under seal. It was an instrument containing mutual covenants. It was in contemplation oí marriage. It was declared good after marriage by the statute between the parties. Ante-nuptial agreements in favor of the wife have always been favored in equity. ■

The Court of Appeals, in Pierce v. Pierce (71 N. Y., 154), say that “ 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 only remaining question is as to the force and construction of the agreement. It is providód by statute that “.if there be a widow and no minor children certain articles specifically mentioned shall belong to the widow.” The dispute is as to these articles.

The agreement is plain. The husband covenanted that upon his death the widow should have $1,500, with interest from the day of his decease, “ in lieu of dower or her rights as widow in his estate'.” The widow covenanted that she would receive the same in full satisfaction of ¡her dower in his estate, “ either in his real or personal estate.”

She was to retain her own property with power to dispose of the same by will or during her life. The will makes the provision for the $1,500. It also gives certain furniture and an annuity of $100 during widowhood. The case is not one involving the rights of any person excejrt the widow. There is no minor child, and the cases holding that an exemption law cannot be waived have no application. The sole question is, can a widow release for a good *57consideration a title to become vested in her on her husband’s death.. She can as well release this provision as she can dower.

That the agreement is drawn so as to include this property there can be no reasonable doubt, if the same effect is to be given to the paper as is given to other agreements, for a certain sum, the covenant is “in lieu of her rights as widow” either'“in his real or personal estate.” My conclusion, therefore, is that the 'widow is not entitled to the articles in question.

Decree modified accordingly.

Dykman, J., concurred ; Gilbert, J., dissented.

Decree of surrogate modified in accordance with opinion. ■