
    Houghton v. Houghton, Administrator.
    Suit by a widow against the administrator to recover 300 dollars, under § 21 of the act regulating descents. Answer, that the plaintiff, prior to her marriage with the decedent, was a widow, and had children by a former husband, and was possessed of property, real and personal, acquired by her former marriage, and the decedent was a widower having children by a former marriage, and also property acquired by such former marriage; that before them marriage, and in view of the same, in order that their contemplated marriage might not effect any change in their respective rights to the property, and that the same might descend to the children of each, as though no marriage had taken place, it was verbally agreed that the decedent should pay to the plaintiff, during coverture, one-third of the net profits of his lands for her use, independent of his control, and claim no right to the use or control of her separate property during coverture, or afterwards, but let it all go to her children by her former marriage, if not otherwise disposed of by her; and in consideration of the foregoing, the plaintiff relinquished all claim to any portion whatever of her said intended husband’s estate after his death, but agreed that it should all go to his children by a former marriage, if not otherwise disposed of by him.
    
      Held, 1. That this agreement may be regarded as fully executed by both parties.
    2. That it was liberal to the wife, and not void for béing by parol.
    3. That it might have been valid if made during coverture.
    
      4. That it was not voiá by the statute of limitations, because not to be performed within a year.
    5. That it was always competent for the husband, by an antenuptial contract, to purchase his wife’s personal fortune; and consequently he may buy her interest in his own.
    6. Antenuptial contracts to be executed after the marriage has been determined, are not destroyed by the marriage.
    
      Tuesday, June, 12.
    APPEAL from the Marshall Court of Common Pleas.
   Perkins, J.

Susannah Houghton, the widow of James Houghton, deceased, brought her action in the Court below against the appellant, administrator of said decedent, to recover 300 dollars, which she claimed under the provisions of § 21 of the “Act regulating descents and the apportionment of estates,” 1 R. S. p. 251.

The defense set up was, in substance, that said Susan-nah, prior to her marriage with the decedent, was a widow, and had children by a former husband, and was possessed of property, real and personal, acquired by her former marriage, and the decedent was a widower having children by a former marriage, and also property acquired by such former marriage; that before their marriage, and in view of the same, in order that their contemplated marriage might not effect any change in their respective rights to the property, and that the same might descend to the children of each, as though nó marriage had taken place, it was verbally agreed that the decedent should pay to said Susannah, during coverture, one-third of the net profits of his lands for her use, independent of his control, and claim no right to the use or control of her separate property during coverture, or afterwards, but let it all go to her children by her former marriage, if not otherwise disposed of by her; and, in consideration of the foregoing, said Susannah relinquished all claim to any portion whatever of her said intended husband’s estate after his death, but agreed that it should all go to his children by a former marriage, if not otherwise disposed of by him.

This agreement was held invalid by the Court below.

The agreement -was fully executed on the part of the deceased husband, so that fhe consideration for the agreement of relinquishment on the part of the wife was fully paid and received; and, inasmuch as the property in which she relinquished her right was in the possession of the husband, and then in his representative after his death, no act was required to be done on the part of the wife or widow in further execution of the agreement on her part; and it seems that the. agreement may, therefore, be regarded as one fully executed by both parties. This would appear to be manifest from the fact that the widow is now, in violation of her agreement, in violation of equity and good faith, invoking the aid of a Court to enable her to prevent the execution on her part from becoming operative. The agreement was extremely liberal to the wife^ and was not void for being by parol. Barnett v. Goings, 8 Blackf. 284.—Resor v. Resor, 9 Ind. R. 347.—Livingston v. Livingston, 2 Johns. Ch. 537.—Malin v. Coult, 4 Ind. R. 535. See 2 Bright’s Husband and Wife, p. 90, et seq.

The foregoing cases show that the contract might have been valid, even if it had been made during coverture. It was affirmed and executed during that relation.

It is claimed that the contract was void because not to be performed within one year.

It seems that contracts, as a general proposition, are not, by part performance, taken out of the operation of that clause of the statute making contracts incapable of enforcement by suit where they are not to be performed' within a year. See note to Fenton v. Emblers, in 1 Wm. Blacks. R. (2d ed.), p. 354; Walk. Am. Law, p. 423. But, in this case, we have seen, performance probably took place. And as to the application of the rule to contracts concerning marriage, and the rights and liabilities incident, see Jenkins v. Eldridge, 3 Story’s R. 184. But if performance was not shown to have taken place, still, according to the case of Wiggins v. Keizer, 6 Ind. R. 252, the contract was not one of which the performance necessarily extended beyond a year, so that it was not within the statute.

It may properly be noticed here that this suit involves only'personal estate; and it may be laid down as undoubted law, that it was always competent for the husband, by an antenuptial contract, to purchase his wife’s personal fortune. Bright, supra.

J. Bradley, for the appellant.

It may be further observed that the statute only applies to cases where the contract is not to be performed by either party to it within a year. Smith on Cont. (Rawle’s ed.), side page 140.

If he could buy hers, it would surely be competent for him to buy out her interest in his own.

Antenuptial contracts, to be executed after the marriage has been determined, are not destroyed by the marriage. 1 Shars. Blacks. Comm., p. 442, note 28.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  