The opinion of the court was delivered by
JOHNSTON, J.:The main question in this case arises upon the validity of the ante-nuptial contract which was entered into by the decedent, Godfrey Hafer, and the defendant, "Virginia Hafer, on the day of and immediately preceding their marriage. She now contends, and the court below held, that an ante-nuptial contract was unauthorized by the law of this state. To this we cannot agree. It is true that our statute of “ descents and distributions” provides what disposition shall be made of the property of an intestate, and what share the widow shall take in his estate in the absence of any contract regulating the disposition of their property interest,- but there is no statutory provision which, either expressly or by implication, forbids the making of such a contract. Indeed, while there is no express authorization for making an ante-nuptial contract that will vary the rule provided by law for settling the property rights of the parties after the decease of either, yet. our statutes clearly recognize the right of parties to make and enter into such agreements. Section 6 of the statute of frauds provides that—
“No action shall be brought ... to charge any person upon any agreement made upon consideration of marriage, . . . unless the agreement upon which such action *458shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” (Comp. Laws of 1879, ch. 43, §6.)
This provision of our statute is substantially the same as § 4 of the English statute of frauds, which, under the interpretation of both the English and American courts, has been held as referring to and affecting marriage settlements and ante-nuptial contracts based upon the consideration of marriage. (Bishop on the Law of Married Women, §806, and authorities cited.)
Recognition of such contracts is also found in the act respecting the rights of married women, which took effect at the same date as the statute relating to descents and distributions. There it is provided that “nothing in this act contained shall invalidate any marriage settlement or contract now made or to be hereafter made.” (Comp. Laws of 1879, ch. 62, §6.)
In many of the states there are statutes concerning jointure, and prescribing the method by which parties contemplating marriage may bar the right of dower and curtesy, and some of the decisions relied on as authority by the defendants were made in those states, and where jointures were held to be insufficient as a statutory bar, because they failed to follow the statute. But even in these cases it is generally held that an ante-nuptial contract, entered into in good faith by competent parties, and which is fair and equitable in its terms, will be upheld and enforced as an equitable jointure by courts of equity. Independent of any such statute, it is generally ruled that the parties may provide a rule by an ante-nuptial agreement changing the one provided by law in settling the property rights of parties entering the married condition. It has been said that—
“Such a contract is not a release of any right, but it is doing what is done every day in other things, namely: providing a rule by agreement, to be applied instead of the rule which the law would furnish in the absence of an agreement. Where this rule by agreement exists, dower on common prin*459■ciples ought to be held not to attach.” (2 Bishop on the Law of Married Women, §418.)
The same author states—
“That before the statute of uses, and therefore independently of the sections concerning jointure, if a husband and his wife had entered into an ante-nuptial agreement whereby she accepted any provision therein made by him in lieu of dower, this undertaking bound her in equity, and she could not have dower on his death. The same law prevailed after the statute was enacted, whence may be traced the doctrine in part, of what is called equitable jointure, in distinction from jointure under the statute of uses, and the rules thereon by the common-law tribunals. And it is said that while legal jointure rests on the statute, equitable jointure rests on the rule of equity as existing before the statute was enacted.” (Id. § 420.)
And again, he says:
“From these views it follows that if a man and wopian about to marry choose, they may arrange their property rights between each other in almost any manner, differing however much from what the law in the absence of contract would direct.” (Id. §28.)
In speaking of the policy of such contracts, the supreme court of Ohio, in Stilley v. Folger, 14 Ohio, 649, says:
“Ante-nwptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage, and tend to promote domestic happiness by removing one of the frequent causes of family disputes, contentions about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement, made before marriage to secure the wife in the enjoyment either of her own separate property, or a portion of that of her husband, -whether during the coverture cr after his death, will be carried into execution in a court of chancery.”
It would seem from the authorities, that agreements of this kind are generally looked upon by the courts with, favor, and are to be liberally interpreted with a view of carrying out the intentions of the persons engaging in them. We entertain no doubt, in the present state of our statutes, of the validity of *460an ante-nuptial contract, entered into in good faith by parties competent to contract, and which, considering the circumstances of the parties at the time of making the same, is reasonable and just in its provisions, and that the rule thus agreed upon will take the place of that prescribed by the statute, in the distribution of their property upon the death of either. (1 Bishop on the Law of Married Woman, §§ 24-29, 360, 363, 418, 420, 422, 427, 805; 2 Bishop on the Law of Married Women, §§334, et seq.; 1 Bishop on Marriage and Divorce, §§ 14, 15; Scribner on Dower, p. 385; Naill v. Maurer, 25 Md. 532; Jacobs v. Jacobs, 42 Iowa, 600; McGee v. McGee, 91 Ill. 548; Stilley v. Folger, 14 Ohio, 610; Mintier v. Mintier, 28 Ohio St. 307; Andrews v. Andrews, 8 Conn. 79; Findley v. Findley, 11 Graft. 434; Charles v. Charles, 8 id. 486; Pierce v. Pierce, 71 N. Y. 154; 17 Cent. L. J. 384, and cases cited.)
It was also held in the court below, that the contract was without consideration. Clearly, this is not so. In addition to the reciprocal agreements therein, it has for its support the consideration of marriage, which is not only a valuable consideration, but has been held to be “the highest consideration known in law,” and is undisputably sufficient to sustain an ante-nuptial contract. (1 Bishop on the Law of Married Women, §§ 775, 805, 806; Naill v. Maurer, 25 Md. 532; Johnston v. Dilliard, 1 Bay, 232; 4 Kent’s Com. 464.)
Another reason given why the contract should be held invalid was, that it was inequitable. Wherein its inequity consists, we cannot see. At the time the contract was made, Godfrey Hafer was a widower, fifty-six years of age, with seven children, all of whom had reached majority except the youngest one, who was fourteen years of age. They, together with his deceased wife, had by their labors accumulated a property of the value of $14,000 and upwards. Virginia Bowser was a maiden of twenty-six years, and the only property she could bring to the union, aside from her clothing, was two cows and $40 in money. It was his duty, under these circumstances, to make suitable provision for the children by his first wife. By the terms of the contract, Virginia was given the sole control *461of her own property, together with the increase and profits thereof, and in case she survived him she was to share equally in the estate with his children. Considering his age, his expectancy of life, under the ordinary rules of computing its dú-ration, was but short. And the fact is, that he died in less than three years after the marriage. At the time of his decease his property had increased to the value of $19,000.
In view of these considerations, we are all united in the opinion that adequate provision was made for Virginia, and that the contract, as far as it concerned her, at least, was fair and highly equitable. (1 Bishop on the Law of Married Women, §§ 422, 423; Naill v. Maurer, supra.) Nor do we think that it can be held to be invalid upon the alleged ground of uncertainty. An examination of its provisions convinces us that they could not well be misunderstood. The chief complaint in this regard is, that the proportion of his estate which she could take under the agreement is uncertain. It is provided therein that during coverture each shall have the untrammeled control of his or her property, as well as the profit thereon, and if she should outlive him she will receive a child’s part; “that is, his estate shall be divided into an equal number of parts, equal to the number of children of the said Godfrey Hafer, plus one, and the said Virginia Bowser shall receive one of the said parts and no more.” The rule of division prescribed by the contract is as definite and certain as the rule provided by the legislature for the distribution of the estate of an intestate; and applying the maxim, “That is sufficiently certain which can be made certain,” we hold the contract to be unobjectionable by reason of uncertainty. The same strictness is not required in these contracts as in the case of a statutory or legal jointure. (See authorities heretofore cited.)
It is further claimed that the contract is invalid because “it was not shown that, at the time of the signing thereof, the financial condition of said Godfrey had been disclosed to or was known by said Virginia, and that it was not understood by said Virginia when she signed it.” Transactions of *462this kind should be characterized by frankness and the good faith of the parties. Any imposition or designed concealment by which either of the parties might be misled or defrauded, would operate to defeat the contract.. We search the record in vain, however, for any testimony that will sustain the finding that there was any deceit practiced by Godfrey Hafer, or that his conversation and conduct in the transaction were other than open, honest, and fair. She had reached mature years, and the testiinpny shows her to be fairly intelligent, and capable of understanding the provisions of a contract so plain and intelligible as were those in the one under consideration. She testified that “ Godfrey Hafer spoke to her about entering into a written contract of marriage about fifteen or twenty minutes before they were married; that they went together to the residence of J. T. Price, the probate judge of Jackson county, who had a contract already drawn up; it was read over once, and signed by them a few minutes before they were married.” No other testimony was given regarding the conduct of Mr. Hafer at the time the contract was executed, except that of the probate judge who drew the contract. He says that before the contract was signed he read it over and explained its provisions to the parties before they signed it; and that some portions of the contract were, read over and explained to them more than onee. It is true, as she states, that at the time they were married he was indebted to his sister for money which he received from the estate of his brother, George Hafer, and to which the sister was entitled as the heir, and that she did not know of this indebtedness at the time of the marriage. No claim is made by her that he misrepresented his financial condition in any respect, nor that he purposely concealed any fact in relation thereto from her, nor does it appear that any complaint or dissatisfaction was ever expressed by her in this regard after the marriage and before his death. The mere fact that he may not have disclosed his assets and liabilities in detail to her, will not, in the absence of anything showing fraud or deceit, invalidate the contract, nor will it raise a presumption *463of fraudulent concealment; and especially is this so where the terms and provisions of the contract are so manifestly fair and reasonable as in this case.
It is further claimed that the contract ought not to be held valid, because the conduct of the parties after it was executed showed that they had abandoned and abrogated it. We see nothing in the testimony brought up in the record which warrants this assumption. On the other hand, it appears to-us that their conduct was entirely consistent with the theory that the instrument was always regarded by both as a subsisting and valid agreement.
Upon the trial, some testimony was offered by Virginia Hafer in her own behalf concerning communications which she had personally with Godfrey Hafer in respect to the making of the ante-nuptial agreement, and which was objected to by the plaintiffs. It clearly came within the prohibition of §322 of the code, which provides that “No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with the deceased person when the adverse party is . . . heir-at-law, . . . where they have acquired title to the cause of action immediately from such deceased person,” and therefore to that extent her testimony was inadmissible and should have been excluded.
Plaintiffs finally complain of the ruling of the court in finding that the home farm was occupied by the family as a homestead at the time of trial, and its conclusion that it was-not subject to partition. The finding of fact upon this question is as follows:
“The southeast quarter of sec. 23, T. 7, R. 15, except the-three acres sold therefrom, had for many years before said marriage been the homestead of said Godfrey, after said marriage remained, and at the time of his death was, the homestead of himself and family, and since his death has been and now is occupied as the family homestead by said Virginia and. two of said Godfrey’s sons and the said Emma B. Hafer.”
This finding, we think, is sufficiently supported by the testimony, and the court rightly held that partition of the home*464.stead could not be made. The ante-nuptial contract in question does not in terms refer to the homestead privilege, nor do we think any of the provisions of the contract embrace what was intended by the parties as a release or waiver of such privilege. But independent of the contract, we remark that the homestead is not made alone for the husband and wife, or of •either one, but it is also designed as a protection for the family who may be dependent upon them for maintenance. ■Considerations of public policy also entered into the enactment, by making such provision as will prevent their helpless ■children and dependents from becoming a public charity. To this end, and with a view of carrying out these purposes, guards have been thrown around the homestead. Strict constitutional and statutory restrictions have been placed upon its alienation. When it is occupied by the family it can only be alienated by the joint consent of husband and wife, when that relation exists; and at the death of the owner, if the homestead is still occupied by the widow and children, the law prohibits its distribution under any of the laws of the state and from the payment of the debts of the intestate, and provides that partition shall not be made until such time as the widow shall again marry, or when all of the children arrive at the age of majority.
In view of these considerations, and of the policy of the law which has been so frequently stated by this court, we think the right of occupancy of the homestead by the family of the intestate is not affected or disturbed by the ante-nuptial contract. We are not without authority upon this question. The supreme court of Illinois held in a case analogous to this one, that the policy of the law in relation to the homestead privilege is to preserve the same for the benefit of the family as well as the owner, and could not be abrogated by an ante-nuptial contract theretofore entered into between the husband and wife. (McMahill v. McMahill, 105 Ill. 596; Phelps v. Phelps, 72 id. 545; McGee v. McGee, 91 id. 548.)
It has been contended by plaintiffs that the minor child, having appeared in court and asked partition of the homestead, *465has thereby waived her right to the homestead privilege. But keeping in view the policy of the homestead laws and the motives of public concern which led to their enactment, we cannot agree to a construction of the homestead law that would permit a homestead, occupied by the widow and minor child, to be defeated and the family relation broken up by a wayward child appearing in court, and through, perhaps, a meddlesome friend asking for a partition of the property. We •conclude that so long as the homestead is occupied by the family of the deceased, and until the widow again marries, or the children arrive at the age of majority, no partition of the homestead can be made.
Prom the views herein expressed, it follows that the order .and decree of the district court must be reversed.
All the Justices concurring.