Kingsley v. Noble

Paine, J.,

dissenting.

I fully concur in the above dissenting opinion. The ante-nuptial contract set out in the main opinion in this case is in model form, was carefully drawn, and deals fairly *149with both parties under all the circumstances disclosed. Having the parties execute it before the county judge, supposed to be impartial in the matter, was an added precaution, in the hope that its validity would be unquestioned. An old man, marrying his third wife after only four social calls, doubtless felt a moral duty to protect the many children of his two marriages in the rights which they had in his property accumulated in part by the assistance of the older children.

In general, the purpose of a marriage settlement, as I view it, is that before the marriage the parties may, with some deliberation, decide and settle what the rights of each shall be in the property respectively owned by each of them. By such an agreement a prospective wife, who longs for a home and the companionship and protection of a successful man, may well decide that property is but an incident, and not the primary purpose of her approaching marriage, and may wisely enter into an agreement which will convince the adult children of former marriages that she is not what is spoken of in common parlance as a “gold digger,” but that she is anxious merely for a happy home and comfort. The family relationships may be far more pleasant under such conditions, and it is not unusual for such a prospective wife to be willing to take far less than what might be an exact mathematical division founded on cold, legal rights.

A wife may, and often does, convey to her husband all of her property; why should it be deemed fraudulent if a prospective wife is modest in her demands upon his property in an antenuptial contract?

The consideration for such forbearance is the marriage, which may be desired above all else by a widow, and is a consideration of the highest value in law. From the earliest times it is said that courts look with favor upon such contracts (Neves v. Scott, 9 How. [U. S.] 196), yet, in these later times, it seems almost impossible to have one approved by our supreme court; it appears strange that, in the opinion of the majority of this court, lawyers should fail, in case after case, in drawing these contracts.

*150The main opinion appears to consider chiefly the property interests involved, and to be concerned with whether the amount of property reserved to the intended wife is “grossly disproportionate” to what she might have secured under the law.

Our court has held that, if it is fairly and equitably made, and entered into in good faith, it will not be disturbed after the death of one of the parties. Neneman v. Rickley, 110 Neb. 446. See Rieger v. Schaible, 81 Neb. 33, 16 Ann. Cas. 700; Erb v. McMaster, 88 Neb. 817; In re Estate of Maag, 119 Neb. 237.

I insist that in the case at bar there was no romance whatever; an old gentleman, with many children by two marriages, wanted a housekeeper; a mutual acquaintance brings them together; she had been working out in different families, and had found that housekeeping for hire was drudgery, and dependence upon her children had its drawbacks, and she wanted a home.

Seventeen years later, after he had faithfully carried out his part of the contract, and had died, she discovers that the antenuptial contract was a fraud upon her rights.

Equity and good conscience ask, why did she not attempt to set it aside while her husband was still living and could have protected the rights of his children and grandchildren ?

I insist that other considerations, rather than a purely mercenary view of money and lands, may in some cases be the controlling motive, and the survivor should be held to abide by an antenuptial contract fairly and legally made.