(dissenting). I am unable to concur in the opinion of the majority of the court. The law of the case was laid down in the former opinion. The rule there enunciated that “the relation of husband and wife is one of special confidence and trust requiring the utmost good faith and equity closely and rigidly scrutinizes transactions between them to the end that injustice and opxiression may not residt. In such cases the principle of law is often applied that fraudulent concealment will be presumed and the burden of proof thrown on him, or those claiming under him, to show that full disclosure had been made where the provision made for the wife is grossly disproportionate to the value of the estate,” is established as the law in this case. Even so, it seems to me that the facts as shown by the record do not warrant the majority opinion.
Charlson was a widower, sixty-five years of age, with a family of grown children. The plaintiff was fifty-three years old, a widow. She had lived in the same community with Charlson for some time. She knew him slightly, and knew him to be in the mercantile business, prosperous, and a man of considerable property. She accepted employment in his household, composed of himself and an unmarried daughter, at a wage of $5 per week. Later lie wanted to marry her and she agreed. His children objected because of the fact that he was an old man, and if she married him she might inherit a considerable portion of his property. She knew these objections. The matter was talked over between her and Charlson, and it was decided that they should not be married. Charlson then suggested that the matter be arranged by eon-*692tract. He had an antenuptial contract drawn. She was a woman of little education but she could read and understand English reasonably well. Though she did not read this contract, it was read to her before sbe signed it, and sbe does not deny that sbe understood its terms. Sbe was assured that as Charlson’s wife she would be well taken care of. She signed the contract. Sbe and Oharlson were married. They lived together happily as man and wife for a year and a half, and she was treated nicely and well taken care of. Then Oharlson died. At the time of the marriage sbe knew that he was well off, but sbe did not know bow much property be bad. In fact, be was worth $50,000. At that time sbe bad property worth about $1,200. During the period of the marriage sbe learned considerable about bis property. Sbe knew be bad a number of farms in North Dakota, and knew that- he bad property in Minnesota and Washington, although sbe did not know the value thereof. Generally, sbe knew about his property. He. advised her that all of bis land was clear of debt.' Sbe knew that be bad an interest in a prosperous mercantile business. lust before bis death he expressed a desire to modify the antenuptial contract in her favor. He told her about it. Sbe assented thereto, and be did modify it. This contract as thus modified gave her as much of bis property as she would be entitled to claim as bis widow in the event of an attempt by him to alienate all of the property. After bis death sbe asserted no claim to more than the amount thus given to her until after the estate bad been fully settled up. When her former husband’s estate was disposed of, as bis widow sbe received a third thereof, the remainder going to their children. Thus she knew that as a widow sbe was entitled to a third. It is true that this estate was' located in Wisconsin, and was distributed according to the laws of Wisconsin, but sbe does not: anywhere say that sbe did not know that the law was the same in North Dakota. Sbe was an intelligent woman, and it is unreasonable to say that sbe did not know.
It seems to me that, though the ruló be as heretofore stated, the circumstances disclosed by the record wholly overcome any presumption that might arise under that rule. It must also be remembered that the rule was first enunciated and most generally followed in those states where the wife bad the dower right, and where generally there was no separate property right in the wife. In this case, bad sbe not *693assented to the two agreements, Charlson could by will have attained exactly the same result attained by enforcing the agreements, and there is no doubt hut that he would have done so. Charlson did not attempt to deceive her, and she was not deceived. She knew the objections raised to the marriage, and she knew that the purpose of making the antenuptial contract was to overcome those objections. On the facts as shown, it is more reasonable to suggest fraud on her part than on his in view of this lawsuit. "While he did not disclose the exact amount in dollars and cents that he was worth at the time he married her, there can he no dispute that she did know that he was a man of considerable property. There can he no dispute hut that when she married him she did so with the understanding that she was not to receive any more property in the event of his death than the agreement provided for. That being the case, the county court properly recognized and interpreted the two agreements. The plaintiff received that which she was entitled to. To give her more is to do injustice to a dead man who was blameless in the. matter, and who acted fairly and honorably.
The judgment of the district court should he reversed.