
    Lena E. Hunt, Appellant, v. Joseph T. Hunt and August L. Buchholtz, Named as Executors and Trustees in the Alleged Will of Wilson G. Hunt, Deceased, and Others, Respondents.
    
      Oral ante-nuptial agreement — mm'riage is not a sufficient part performance to avoid the Statute of JPrauds— a will in execution of, hut not referring to, the agreement, is not a confirmation of it.
    
    A marriage in pursuance of a parol ante-nuptiivi agreement, of which it is the sole consideration, is not in itself a sufficient part performance thereof to remove the bar of the Statute of Frauds.
    The fact that the husband after the marriage, executed a will containing no allusion to the ante-nuptial agreement by which he gave to his wife substantially all his property, as he had agreed to do by the' ante-nuptial agreement, is not a. confirmation of the ante-nuptial agreement sufficient to prevent the operation .of the Statute of Frauds.
    Appeal by the plaintiff, Lena E. Hunt, from a judgment of the . Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on the 13th day of September, 1899, upon the decision of the court rendered after a trial at the Ontario Special Term dismissing the complaint upon the. merits, except from so much of said judgment as denies costs.
    This action was commenced September 6,1897, to enforce specifically an ante-nuptial agreement alleged to have been made between the plaintiff ahd her husband, Wilson Gr. Hunt. After the action was commenced, but before its trial, the original defendant died, and the present defendants, who are his executors and legatees, were substituted in his stead.
    The complaint alleges in substance that, on the 15th day of October, 1896, the plaintiff and Wilson G. Hunt entered into an agreement whereby the latter agreed that, if the plaintiff would become his wife, he would pay her immediately upon the marriage $5,000 in cash, convey to her a house and lot owned by him in the city of Geneva, pay her $2.50 per week, which represented the weekly rental of a certain house which he owned, and also execute his will absolutely in her favor of all his property, which amounted to about $30,000, except a watch and the sum of $200. The court has found on evidence warranting the conclusion that the agreement recited in the complaint was made and that the parties to it intermarried October 15, 1896. The husband was sixty-four years of age and the plaintiff twenty-five, and from the outset the marriage was an unhappy one, and in six or seven months the plaintiff returned. to her father and the husband did not comply at all with his agreement. He died in October, 1897, and left a will in which he attempted to cut off the plaintiff entirely from any share in his estate, reciting that he was induced thus to ignore her “ by reason of her misconduct and ill-treatment of me.”
    
      Edwin Hicks, for the appellant.
    
      Willimi S. Moore, for the respondents.
   Spring, J.:

The ante-nuptial agreement rested in parol and its only consideration on the part of the plaintiff was her marriage with Mr. Hunt, and that is urged to be sufficient part performance to remove the bar of the Statute of Frauds. From an early period the authorities in this State have been unvaryingly the other way. (Reade v. Livingston, 3 Johns. Ch. 481; Dygert v. Remerschnider, 32 N. Y. 629; Brown v. Conger, 8 Hun, 625; Ennis v. Ennis, 48 id. 11,14; Lamb v. Lamb, 18 App. Div. 250; Whyte v. Denike, 53 id. 320.)

In Brown v. Conger (8 Hun, 625) the action was by the widow to recover one-third of her husband’s estate based upon an oral ante-nuptial contract, and the court in considering this subject, said (at p. 62'T) : “It is urged..by the appellant’s counsel that the marriage in pursuance of the ante-nuptial agreement is such a part performance as that a court of equity will enforce the parol contract notwithstanding the.statute of frauds.' The counsel refers to no case which supports this proposition. Indeed, the cases so far as I have examined them, are all the other way.”

That seems to accord with the doctrine generally recognized. (Tiff. Pers. & Dom. Rel. 160; Beach Mod. Eq. Juris. § 622; Schouler’s Dom. Rel. [5th ed,] § 179 ; Clark Cont. 102 ; Pom. Cont. [Specific Performance] [2d ed.] § 111; 8 Am. & Eng. Ency. of Law [1st ed.], 685.) The rule is thus stated in Tiffany on .Persons and Domestic Relations (at p. 160, supra): “ The marriage of the parties, is not such part performance as will, .even in equity, take the agreement out of the operation of the statute.” Pomeroy, in treating of specific performance in his work on-Contracts, gives the rule in a sentence and supplements it with a terse statement of the reason for it. He says (at §§ 111, 113): “ When a verbal contract is made in relation to or upon the consideration of marriage, the marriage alone is not a part performance upon which to decree a specific execution. This rule, which is firmly established, is based upon the express language of the statute. A promise made in anticipation of a marriage, followed by the marriage, is the exact case com templated by the statute. It is plain that the marriage adds nothing to the very circumstances described by the statutory provision which makes a writing essential; in fact, until the marriage takes place, there is no binding agreement independent of the statute, so that, the marriage itself is' a necessary part of every agreement made upon consideration of it, which the Legislature has said must be in writing.” The fact that the present action is in equity does not relieve the appellant from this rule. A valid contract must be the foundation of the right to recover whatever may he the form 'of the action. (Dung v. Parker, 52 N. Y. 494.)

The proof tends to establish that while they were cohabiting together as husband and wife, Mr..Hunt did execute his will giving to her substantially all of his property. The document was destroyed and its contents depended upon oral testimony. There was no suggestion, however,- that it contained any recognition' of the ante-nuptial agreement or any allusion to it. This was not a confirmation of that agreement sufficient to prevent the operation of the Statute of Frauds. To surmount the difficulty imposed by that statute by a subsequent ratification or adoption of the parol agreement the contract must have been explicitly recited in the will, leaving nothing for extraneous proof. (Cooley v. Lobdell, 153 N. Y. 596, 600; Mentz v. Newwitter, 122 id. 491.)

In the latter case the court says (at p. 497): “ And the whole current of authority in this State is that the memorandum must contain substantially the ivhole agreement, and all its material terms and conditions, so that one reading it can understand from it what the agreement is.”

We have carefully considered the many authorities cited in the brief of the appellant's counsel, but they do not contravene the rule which seems to be so well settled. While a valid ante-nuptial agreement is enforced wherever possible, no case has been presented to us obnoxious to the Statute of Frauds or mitigating its force where the only performance of the oral contract inducing the marriage was the marriage itself in which specific performance has been decreed.

The judgment is affirmed, with costs to the respondents.

All concurred.

Judgment affirmed, with costs.  