1030_ SIMS V. ROBERTS.-[188 , SIMS V. ROBERTS. 4-3393 • Opinion delivered March 5, 1934. 1. FRAUDS, STATUTE OF-MARRIAGE SETTLEMENT-PART PERFORMANCE. • —An oral marriage settlement entered into before marriage, being reduced to writing signed and acknowledged after mar- -
ARK.] SIMS V. ROBERTS. 1031 riage, followed by substantial part performance, is valid and enforceable after the husband's death against his admihistrator. HUSBAND AND WIFE—MARRIAGE Sin-rLEMENT—RECORD.The ,statutes requiring marriage settlements to be , acknowledged and recorded (Crawford & Moses' big., §§ 7028, 7029, 7032) . have no application as between the parties to the settlement and their privies. Appeal form Boone Circuit Court ; J.. F. Koone, Judge ; reversed. V. D. Willis and Shi -nn Henley, for appellant. J. Loyd Shouse and Cotton ie Murray, for appellee. BUTLER, J. At an undisclosed: date. J. L.Sims and the appellant, Ord Sims, became husband and wife, -and thereafter, on the 20th day of October,.1930,_ they entered into a written contract, the material parts of which may be summarized as follows : an indebtedness was 'acknowledged by J. L. Sims due . Ora Sinas in the 'sum of$5;000, without interest, to • be due and payable, upon the cendi-tion that -J. L. Sims died before Ora Sims, otherwise the "debt fund" should revert to the :estate of J L Sims, and the agreement would be null and void. For security of the payment of the aforesaid sum, certain bank stock, of the par value of $5,000 was pledged, assigned and transferred, and attached to the original Contract to- be held by the First National Bank, which bank was authorized upon the death of Sims to- deliver to .Ora- Sims,. in the event the estate did not pay the $5,000, the stock 'certifi— cates to be sold and their proceeds in exceSs of the amount of $5,000 to be paid to the estate.: 'It was recited that the amount mentioned above was the -balance -of th& suth of $17,528, of which sum Ora Sims acknowledged receipt of $12,528 in cash; which, together with the $5,000.mentioned in the contract, constituted the $17,528 :paid. and to be paid to Ora Sims in consideration of her releasing all claim in and to the estate of J. L. Sims, both real and personal, including dower and -honiestead rights in and to. all real property. In the event Ora Sims survived her husband, she was obligated to execute . -to , his- legal representatives all necessary documents to effectuate the agreement on her part. As' a condition to the payment to Ora Sims of the balance named it was provided "that
-4032 Sims V.- ROBERTS. {188 she perform the agreements and covenants set out, including her executing a full release to the estate as mentioned, it being understood and agreed by and between the'parties hereto that.the said sum of $17,528, of which the said sum of $5,000 is the balance to be paid, is in full settlement of all property rights, including dower and homestead, as between the said J. L. Sims and Ora Sims, husband and wife, and the same is made in consideration of the agreement entered into before their marriage, and .in consideration of marriage, the same not having been reduced to -writing until this date." A further and final provision was to the effect that -Ora Sims should care for J. L. Sims during any sickness or infirmity, and that, should she desert him, the contract would be void. J. L. Sims died, and John Roberts was appointed administrator of hiS estate. Ora Sims presented to him, with the contract' attached, - her claim for $5,000, duly sworn to as prescribed by statute. This .claim was disallowed by the administrator and also by the probate court. When the-case reached the circuit court.on appeal, the administrator interposed a demurrer on the ground that the claim "does not state facts sufficient to constitute a:cause of action in that the contract upon which said claim is based is not a valid and binding contract against the estate of Dr. J. L: Sims, deceased." The court sustained the demurrer and dismissed the claim, from which judgment is this appeal. To sustain the action of the trial court, the atipellee relies on the statute of frauds; § 4862, Crawford & Moses' Digest, as follows : "No action shall be brought : * Sixth. To charge any person upon any contract, promise or agreement that is not to be performed within one year -from the making thereof, unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some Other person by him thereunto properly authorized." Appellee also relies on § 7028 of the Digest under the head of "Marriage Contracts," as follows : "All marriage contracts whereby ally estate, real or per-
&BK.] SIMS v. ROBERTS. 1033 sonal, is intended to be secured or conveyed to any person, or whereby such estate may be affected in law or equity, shall be in writing and acknowledged by each of the contracting parties, or proved by one Or more sub-Scribing- witnesses."- He cites the case of Galbraith v. Cook, 30 . Ark. 417, the second syllabuS of which is as follows : "A marriage contract must be reduced to* writing and acknowledged •under• our statutes." • • The learned trial judge did not indicate on - What theory he held the contract inValid. It Might lave been his opinion that an oral • antenuptial contract, being within the statute of frauds, Could not subsequently be validated by reduction *to writing after the marriage. There isTespectable authority to support this view. Smith .v: Greer, 3 Humph. (Tenn.) 118; Read v. Livingston, 3 John. Ch. Rep: 481 ; WoOd v: Savage, 2 Doug. (Mich.) 316. There are equally respectable authoritieS holding that a parol antenuptial agteement, Where the marriage has been consummated on the faith of the same, reduced to writing after the marriage, is suffiCient compliance with- the statute. We 'find it unnecessary- to pass upon this question • becatise, in our opinion, the contract having been reduced to writing; and signed by the parties, it is sufficient to make it valid . betWeen them and their 'privies whether it be treated as g n anteimptial agreement re-duced-to writing or a post-nuptial settlement. There can be no doubt but that a husband may dispose • of hiS ptcip-erty or provide- for its disposal by any method he may deem proper which will -be . binding against all except creditors. If th0 contract be treated as having been made in consideration of a"Parol antenuptial agreement, it will appear by its recitals that there has been a substantial part performance. Ora Sims, having been paid in cash , • the sum of $12,528; and tbe marriage consummated, *the presumption is that she and J. L. Sims lived together as husband and wife until the death • of the former. As pointed out by - Bishop in the-first voluine of hiS tfeatise on Law of• Married Women, parol antenuptial' agree-inents were 'valid at common law, and are not made void by• statute. Our statute is a re-enactment of the English Statute Of Frauds' (29 'Car. 2),'and, in commenting upon
1034_ Sims V. ROBERTS. [188 its language, Mr. Bishop, at § 807, vol. 1, p. 605, supra, has this to say: "Incautious persons have sometimes, not looking at the exact words of the statute, supposed that, if an agreement is founded on the consideration of marriage, and is not in writing, it is therefore void. But that is not what the statute says. It simply says that 'no action shall be brought whereby to charge any person upon'• this parol agreement. For example, if the parol agreement has been executed, the rights of property acquired under it are as secure as if the contract had been written and duly signed. Therefore, although marriage, following a parol antenuptial agreement, is not even a part performance of it, to take the case out of the statute of frauds, yet, if there is such an antenuptial agreement founded on this consideration of marriage, and it is voluntarily carried out while the coverture lasts, it is, on the death of one of the parties, • inding as .between his representatives and the party living." This court, in the case of Storthz v. Watts, 125 Ark. , 393, 1 , 88 S. W. 1166, cited with approval in Newton v. Mathis, la() Ark., 252, 215 S. W. 615, lays down the rule that a substantial part performance of a contract is sufficient to-take a verbal contract from within the statute. The test .of the validity of the marriage contract is whether or not it would-bar the widow of her right of dower, in the estate of her deceased husband. In the instant case, Mrs. Sims, having acknowledged the existence of the antenuptial agreement and the receipt of a .substantial, part of the sum stipulated to be paid, could not he permitted to renounce the contract simply because it had not been reduced to writing before the marriage. This is true because the parol antenuptial agreement, not being void but merely unenforceable, the part performance subsequently acknowledged in writing rendered it en-• forceable Against the wife and consequently against the representatives of the deceased husband. The headnote in the case of Galbraith v. Cook, supra, faiied to notice that the written contract might be proved by subscribing witnesses without the necessity of a formal ,written acknowledgment. That case is therefore no
auth -ority for holding that the contract in the case at bar is void. It is true that it has not been proved and recorded as provided by §§ 7029-30 of Crawford & Moses' Digest, but by § 7032 it will be noticed that these sections do not apply as between the parties to a contract and such as have actual notice thereof. In this case the administrator occupies the same relationship to•the appellant with respect to. the c6ntract•aS, did her husband, and therefore the failure to prdve and record the contract does not render it invalid as to him. , There is no contention before us 'that there was any fraud practiced•in the procurement of the contract, :that any of its material recitals are false, or that the rights of creditors are involved. We therefore cannot consider any of these questions, and, if any such exist, they -may be raised on a remand of the cause. From what we have said, it ,follows that the trial court erred in sustaining the demurrer. The judgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, and for further proceedings in accordance with law and not in conflict with ,this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.