
    William M. Knapp, Executor, etc., v. Emily Knapp.
    
      Husband and wife — Separation agreement — Waiver of interest in estate.
    
    1. In the absence of proof that the law of another state gives to a widow a distributive share in her husband’s personal property, the common law rule, which gives her none, will be presumed to prevail.
    2. A widow will not be barred from claiming a distributive share in her husband’s personal estate under the laws of this State, by her waiver, in an agreement for separation entered into in another state, of whatever claim she might have as his widow, in case she survived him, under the law of that state, in the absence of proof that the law governing the distribution of personal property is the same in both states.
    3. Where after entering into an agreement for separation, by which the wife waived all claim which she might have in her husband’s property in case she survived him, the parties become reconciled, and resume marital relations, 'the contract is avoided, and the wife becomes entitled to her former rights.
    
    Appeal from Genesee. (Newton, J.)
    Argued February 15, 1893.
    Decided May 31, 1893.
    Bill to enforce tbe provisions of a separation agreement, and to enjoin the widow from claiming a distributive share in her husband’s personal estate. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.
    
      Durand é Carton, for complainant, contended:
    1. A contract between husband and wife, made in consequence of a separation, and when they have fully decided to separate, without fraud or coercion, and containing suitable provisions for the wife, is valid; citing Randall v. Randall, 37 Mich. 563; Rhoades v. Davis, 51 Id. 306.
    g. If the question were one of divorce, the fact of the parties’ cohabiting together after the alleged conjugal misconduct might be most material, but in a case like this, where only property interests are iuvolved, the fact that the parties lived together in the same house for a few weeks after the first' separation, and then separated finally, cannot affect the separation agreement; citing Hollenbeck v. Pixley, 3 Gray, 526.
    3. If the contract is a valid one, and its provisions have not been waived, the husband having performed on his part, equity will enforce performance by the wife; citing Sullings v. Richmond, 5 Allen, 187.
    4. Where a woman enters into an antenuptial agreement with her intended husband, by which, in consideration of certain things to be done by him, she agrees to release all claims and interests in his estate, the contract can be enforced in equity; citing Tarbell v. Tarbell, 10 Allen, 278; Jenkins v. Holt, 109 Mass. 261; Blackinton v. Blackinton, 110 Id. 461; Paine v. Hollister, 139 Id. 144.
    
      Cold & Johnson, for -defendant, contended:
    1. In support of the claim that the separation agreement was avoided by the after-cohabitation, counsel cited Story, Eq. Jur. §§ 1427, 1428; Shelthar v. Gregory, 2 Wend. 422; Kehr v. Smith, 20 Wall. 31; Carson v. Murray, 3 Paige, 501.
    
      
       See Lansing v. Haynes, 95 Mich. 16.
    
   Hooker, C. 'J.

The facts in this cause, briefly stated, are as follows: John Knapp and his wife, Emily, resided in Wisconsin, and on February 9, 1885, executed the following contract upon an agreement to separate:

Whereas, my husband, John Knapp, of Princeton, Wisconsin,.has this day secured me the payment of $2,800 by his note and mortgage upon his farm, which sum so secured I hereby acknowledge my fair and just part of the property which we have and hold:
“Now, therefore, in consideration of the said sum so secured, I do hereby release to him, the said John Knapp, all claim, title, and interest in the property owned and possessed by the said John Knapp, and. I hereby waive all claim which I may have as the widow of said John Knapp (if I shall survive him) by or under the laws of the state of Wisconsin; and in case of a legal separation between the said John Knapp and myself, the sum so secured by him I hereby accept in lieu of alimony, support, and all other expenses, except I am to have just and liberal support until-the 10th day of June next; and, further, I am to have one-half of the beds and bedding in the house, and such few dishes as I may choose to take.
“Witness my hand and seal this 9th day of February, 1885;
lier
“Emily X Knapp.
mark
“In presence of
“John Sullivan.
“George D. Waring.”

The mortgage was delivered to Emily, and the parties separated. Proceedings for’ divorce were commenced September 28, 1885, by the husband, and proofs were taken, but the cause was discontinued in April, 1886. Subsequently the parties met in Michigan, and' “lived, and kept house by themselves together in Davidson for a few weeks,” when they again separated. The husband afterwards made a will, leaving his property, consisting of between one and two thousand dollars5 worth of personal property, to a nephew and some nieces, to the exclusion of his wife, stating in the will, as a reason for making no provision for her, that she had already received the larger portion of his estate. William Knapp, the complainant, was one of the legatees, and was appointed executor of the will. The widow having asserted her claim to an alloAvance and a distributive share of her husband’s estate, the executor filed his bill in the circuit court, 'in chancery, praying that she be enjoined from claiming any portion of said estate, and upon dismissal of his bill he appealed to this Court.

It may be doubted whether the contract precludes her from receiving a share of her husband’s property, as it in terms confines her waiver to such claims as she might have “as the Avidow 'of John Knapp under the laws of'the State of Wisconsin.” It does not purport to waive all claims. Whether the law of Wisconsin gives to the widorv the same statutory allowance and distributive portion of her husband’s personal estate as does the law of Michigan we have no means of determining from this record, and must therefore assume that the common-law rule prevails there, which gives neither. It cannot, therefore, be said that she waived them.

The testimony shows that the parties became reconciled, and lived together for a time, after coming to Michigan. Under many authorities this avoided the contract, and she became entitled to her former rights. Story, Eq. Jur. §§ 1427, 1428; Shelthar v. Gregory, 2 Wend. 422; Kehr v. Smith, 20 Wall. 31; Carson v. Murray, 3 Paige, 501.

We therefore conclude. that the defendant was entitled to her full rights in her deceased husband’s property, under the law of Michigan.

Counsel for the complainant seem to have proceeded upon the theory that the amount received by her upon separation was an equitable claim against her on behalf of the estate; but we find no authority for such a pr.oposition. The decedent did not see fit to require its return, and though he made mention of his wife in his will, and expressed the opinion that she had sufficient, the will did not indicate that he made any claim against her upon account of it. If we treat it as a voluntary gift (which is the most that can be claimed), the representatives of the deceased cannot complain of it.

Without saying that equity cannot entertain such a case as this, we feel that there is little excuse for bringing it here. Our law (How. Stat. § 5964) gives to probate courts the authority to make decrees assigning estates to those by law entitled to the same. This would seem to confer the power to adjudicate between contesting claimants, as was done in the case of Jenks v. Trowbridge Estate, 48 Mich. 94. In the present case the complainant’s bill asks a decree denying to the defendant a hearing in the forum expressly provided by law for such cases.

The decree of the court below, dismissing complainant’s bill, -will be affirmed, with costs of both courts against the complainant.

The other Justices concurred.  