
    Mary S. Davis, App’lt, v. Jacob D. Wood et al., devisees of Jacob H. Davis, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    Antenuptial agreement—Fraud—Consideration.
    Plaintiff sued the deceased for breach of promise, alleging seduction, which action was settled and they were married in 1867, an antenuptial agreement being entered into by which each was to retain his and her separate estate. Plaintiff had about $1,400 and defendant $60,000. He was about sixty-five, a widower with adult children. The referee found that there was no fraud and that plaintiff executed the agreement with full knowledge of its contents. Rid, that under the circumstances the court would not presume fraud from the smallness of the provision in the wife’s favor; that there was ample consideration for the agreement and that an action to set it aside was barred by the statute.
    
      Appeal from a judgment entered upon the report of a referee upon the trial in Ulster county.
    
      John E. Van Etten, for app’lt; A. T. Clearwater, for resp’ts.
   Landon, J.

The plaintiff seeks to set aside the ante-nuptial contract entered into between herself and her late husband, Jacob H. Davis; who died after the plaintiff took this appeal from the j udgment.

The parties were married April 24, 1867, and lived together until after this action was brought in 1881. The plaintiff alleges that she executed the ante-nuptial contract, not knowing its contents or effect, and upon the false representation of her then intended husband that it was a deed for the sale of a wood loL Upon conflicting testimony the referee decided this question of fact against the plaintiff. The referee also found that the plaintiff executed the instrument with full knowledge of its contents. We think the finding of the referee is in accord with the clear weight of the testimony.

The learned counsel for the appellant urges that the ante-nuptial contract'was without consideration and also was so inequitable and unreasonable as to justify the court in presuming fraud, and therefore in setting it aside.

The plaintiff had about $1,400 and the late defendant upwards ■of $50,000. She was twenty-one years of age, and he about sixty-five. He had three adult children by a former wife. The plaintiff had sued him alleging her seduction and pregnancy, accomplished under his promise of marriage. That action was settled, the plaintiff withdrawing the allegation of promise of marriage. A ■child was born to her. The ante-nuptual contract and marriage followed. The effect of that contract was that each party, should retain his and her separate estate free from the control of the other, or of any ultimate lien upon or interest in it in favor of the other. The plaintiff relies upon Pierce v. Pierce, 71 N. Y., 154. The circumstances are different. There is no need to enlarge upon them. The allegation of fraud has reference to the ante-nuptial contract. It may be that her intended husband had in his past relations done her great wrong, but we cannot fail to see that it must have been of the utmost importance to her to retrieve so far as possible her character and standing, by entering into this marriage. Her intended husband with his adult children, and considerable estate, might well wish .at his marriage to remove such grounds for regret as he would naturally expect to encounter. It is not unreasonable to suppose that as far as this could be done by .this ante-nuptial contract the plaintiff was quite willing to co-operate.

We therefore are not inclined to presume fraud from the smallness of the provision in the wife’s favor. Upon the finding of the referee that the plaintiff understood the contract when she entered into it, the action is barred by the statute of limitations. Fraud not being established, the contract is valid, marriage being an ample consideration to support iL

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  