delivered the opinion of the Court i
Excluding as we must, on the objection of appellant, the testimony given by appellee upon the hearing, there is no evidence in the record of the circumstances attending the making of this agreement. Ho one witnessed its execution, and no one was informed that such an instrument had been executed until long after its execution. Some expressions of Taylor and admissions of complainant that such an instrument had been executed, are proved; but Taylor’s expressions were as to the effect of the instrument, making no explanation of the circumstances attendant upon its execution, and the admissions of the complainant are accompanied by the explanation, that if she had known, at the time the instrument was executed, what she knew at the time of making the admission, she would not have signed it.
The parties were married four days after the date of this agreement — October 22,1883 — and Taylor died on the 30th of June, 1889.
At the time of Taylor’s death, he was seized of real estate estimated to be of the value of $28,000, of most of which he was seized at the time the agreement was executed. His personal estate, at the time of his death, was estimated to be of the value of $13,000. How much of this he owned at the time the agreement was executed does not appear. The parties were cousins — both had been previously married — he twice and she once. She had one daughter then married and living apart from her. He had three sons and three daughters, two or three of whom were minors, but not of a very tender age. The complainant was born and raised in the city of New York and resided there until she came to Peoria county shortly previous to her marriage. She had no property, either real or personal, and maintained herself by dresssmaking. Taylor had been a resident of Peoria county for many years, but we think there is competent evidence in the record clearly proving that, at the time this agreement was executed, he knew that complainant had no property. There is not a particle of evidence in the record tending to show that it was anticipated by the parties, when this agreement was executed, that the complainant would or could in any understood way, acquire a separate property subsequent to her marriage.
In view of these facts that must be taken into consideration in connection with the making of the agreement, the agreement is one-sided and unfair to the complainant. It is a virtual relinquishment on her part of dower in his real estate, and of her claim for a personal allowance in his personal property, and of what she would take in his personal estate under the statute of descents, for $2000, to be paid to her within two years after his decease. Having, no separate property and the acquisition of none in contemplation, the surrender of his rights as to such property is meaningless. Nor do we agree with counsel that the provision that children to be born of the contemplated marriage shall inherit equally with his other children, amounts to a contract in behalf of such children. The language is: “ Should any children be born of said marriage, and survive the party of the first part, said issue shall inherit all the estate of the party of the first part equally with any issue the party of the first part may have from former marriage or marriages, the same as if no contract existed between the parents,” plainly intending not to restrict the power of disposition by sale or devise, but to leave the inheritance of his property, as respects his children by her, unaffected by the agreement; and so they were as well off without as with this stipulation. The sum to be paid is not above one-half, if indeed it is that, of what complainant would have received as widow from the personal estate alone, in the absence of any agreement, and it is to be received at a date no earlier than she would have received it in the absence of an agreement.
It is unnecessary to say that complainant was not competent to enter into such an agreement. It may be conceded that she had the legal capacity to make such a contract, and that marriage was a sufficient consideration to support it. But, in the absence of clear and satisfactory proof, it is not to be presumed that she would, with full knowledge of all the circumstances, have entered into such a .contract. Parties to an ante-nuptial contract occupy a confidential relation toward each other. Kline's Estate, 64 Pa. St. 124; Pierce v. Pierce, 71 N. Y. 154: Rockafeller v. Newcomb, 57 id. 86. While they may lawfully contract with each other, where there is full knowledge of all that materially affects the contract, yet where the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises the presumption of designed concealment and throws the burden upon those claiming in his right to prove that there was full knowledge on her part of all that materially affected the contract. Cases cited supra; Beirer’s Appeal, 92 Pa. St. 267; Tiernan v. Reims, id. 248; Spurlock v. Brown (Tenn.), not yet reported (18 S. W. 868). The burden here was, therefore, upon appellants to prove by satisfactory evidence that appellee had knowledge of the character and extent of her intended husband’s property, and of the provisions and effect of this instrument, or, at all events, that the circumstances were such that she reasonably ought to have had such knowledge at the time this instrument was executed. In our opinion, they failed to make such proof.
It is further contended that there is error in the decree in awarding the homestead to complainant as part of her dower, without recognizing the existing rights of William G. Taylor therein, In our opinion, this is a misapprehension of the effect of the decree. It expressly directs that the commissioners shall give her, “ without prejudice to the homestead rights of the minor child of the said Burtis S. Taylor,” who is William G. Taylor, “ the homestead or dwelling-house of her husband,” etc.
The clause directing her to be let into possession is subordinate to this. She is to be let into possession of the premises so assigned to her as dower; ” that is, in those where William G. Taylor, the minor, has a homestead right, without prejudice to that right, as well as absolutely into those where there are no conflicting rights.
The decree is affirmed.
Decree affirmed.
Craig and Magruder, JJ., dissenting.