
    Smith v. Smith et al.
    
      Post nuptial agreement — Release by each party of all interest in property of other — Husband died intestate and without issue— Widow may inherit property of husband.
    
    A husband and wife made and entered into an agreement of separation, whereby the husband conveyed to the wife certain real estate, paid her $500.00 in money and allowed her to remove her own furniture, and both then stipulated, that “ each party releases any and all claim, right, title or interest, either vested or contingent in or to any property, present or future acquired, belonging to the other.’ ’ The wife survived the husband, who died intestate and without issue, leaving certain real estate, subject to descent as non-ancestral property under the provisions of section 4159, • Revised Statutes. Held: That the effect of the language was to give to the husband of the wife the full dominion of his own property, with power to dispose of it by will or otherwise, without the assent of the wife during her life, but did not affect her right to inherit from him as his widow any property of which he died seized.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Athens county.
    
      Wood & Wood and Grosvenor, Jones & Worstell, for plaintiff in error.
    Upon the death of Charles D. Smith, the estate left by him, subject to the payment of his debts, immediately passed, either by will to a devisee or devisees, or by descent to his heir or heirs. It could pass in no other way. Crane v. Doty, 1 Ohio St., 279; Bane v. Wick, 14 Ohio St., 505; Gano v. Fisk, 43 Ohio St., 462.
    Upon the death of Charles D. Smith all dominion over his property passed to the law, and the law accepted the dominion and sent it in its own way, absolutely irrespective of any plan or wish of Mr. Smith, or of any other person. Even had Mr. Smith made a will declaring that his wife should have none of his estate but not otherwise disposing of it, that will would not have prevented the widow’s taking the estate as heir. Crane v. Doty, 1 Ohio St., 282; 1 Jarman on Wills 5th Am. Ed., 619; Needles Exrs. v. Needles et al., 7 Ohio St., 432; Gibson et al. v. McNeeley et al., 11 Ohio St., 131; 4 Kent’s Com., 525; Tiedeman on Real Property, pp. 508, 663.
    The party to whom the law passes property by descent, must take it, whether he wishes to do so or not. Bingham on Descent, page 2; 3 Washburn on Real property, 4th ed., p. 6.
    The law favors the vesting of estates. Linton v. Laycock, 33 Ohio St., 128; Bolton v. Bank, 50 Ohio St., 293.
    And since our statutes of descent are so framed as to cover all possible cases, in determining questions of descent, only t'he statutes are to be considered. Penn et al. v. Cox et al., 16 Ohio, 30; Drake et al. v. Rogers, 13 Ohio St., 21; Sheffield v. Lovering, 12 Mass., 490. Charles D. Smith, having died childless and intestate, the law seized his estate and passed it to Lizzie Smith his widow. Revised Statutes, section 4159; Patterson v. Lamson, 45 Ohio St., 77. The fee also vested in her. Stemble et al. v. Martin et al., etc., 50 Ohio St., 495; 1 Johns Chancery, N. Y., 417; Armington et al. v. Armington et al., 28 Ind., 74; Foster’s Appeal, 74 Pa. St., 371.
    The claim of the defendants in error to the estate of Charles D. Smith must, be based entirely on the contract of July 8,1891. Does this contract bar Lizzie Smith from taking the property as his sole heir, under section 4159, Revised Statutes?
    
      The property in controversy was owned by Mr. Smith at the time the contract was made. The phrase “future acquired” then necessarily related to property that might thereafter be acquired by either party. The contract does not purport to release any “future acquired” rights that either might thereafter acquire in the property of the other by reason of deed, will, descent or otherwise.
    Even if the contract had undertaken to convey or release to Mr. Smith or to any one else the interest that Mrs. Smith might inherit as his heir, it would have been entirely inoperative and void either as a sale or release. Shephard’s Touch, 322, 328.
    So that if Mrs. Smith had intended to either convey or release her hope of succession as heir to her husband’s estate, she could not have done so. Revised Statutes, section 3113; Hart v. Gregg, 32 Ohio St., 502; 4 Kent Com., p. 262 and note (a) same page; Jeffers v. Lamson, 10 Ohio St., 106.
    
      J. M. McGillvray; Sleeper & Sayre and L. M. Jewett, for defendants in error.
    Our contention is that, by the contract mentioned, Charles D. Smith and Lizzie Smith, as husband and wife, in view of a permanent and final separation, made a permanent and final division and partition of their estates, and not only as to present interests in existing property, but of all future interests, whether in existing or after acquired property.
    The fact that the parties of the contract were husband and wife has no weight. Section 3112, Revised Statutes.
    Contracts of separation, when fair and reasonable in the light of the surroundings of the parties, are valid and binding. Section 3113, Revised Statutes; Bettle v. Wilson, 14 Ohio St., 266; 2 Pom. Eq. Juris., section 932.
    The petition alleges, and the demurrer concedes, that the division of property made by the contract of July 8, 1891, was just, fair, and reasonable; and, therefore, from then until the death of the husband, the wife had no claim upon him or his property, for support, inchoate dower, or otherwise.
    Did plaintiff in error, by the death of her husband, acquire any interest in his property that was neither contingent nor inchoate while he was alive? Unless she did, she has no right to any portion of the property in question. • And how she could is answered by counsel for plaintiff in error by the oft-repeated statement that the law seized and transmitted it to her, notwithstanding the contract, and whether she desired to take it or not.
    If a wife can, by a post-nuptial contract, release her right to a distribution share of her husband’s personal estate, as in Miller's Ex. v. Miller, 16 Ohio St., 528, and of her right to dower, as expressly held in Thomas v. Brown, 10 Ohio St., 247, what reason is there, and where is the authority that she cannot relinquish her right to claim all of his estate, in the event of his survival, where the husband leaves no children ?
    It has long been the rule of law that the right of a widow to claim dower could be barred by either an ante- or postnuptial contract, where such contract provided for a just and reasonable settlement upon the wife. McLeod v. Board, 94 Am. Dec., 3011.
    The widow is not and can not be the heir of the husband as stated in brief for plaintiff in error.
    1 Bouv. Law Diet., Tit. “Heir.”
    
      It can not therefore include a widow; and, under, our statutes and those of similar nature, the interest of a widower or a widow in the estate of the relict is in virtue of the marital relation rather than as heir of the deceased consort. McMenomy v. McMenomy, 22 Iowa, 148; Journell v. Leighton, 49 Iowa, 601; Richardson v. Martin, 55 N. H., 45; Gauch v. St. Louis Mut. Life Ins. Co., 38 Ill., 251; Keteltas v. Keteltas et al., 72 N. Y., 312.
    Even if it be true that plaintiff in error was the heir of her husband, and' as a matter of law an executory contract for the release of the interest of an heir in a parents estate would not be in force, yet such is not the rule in equity as to an executed contract. 2 Story Eq., Juris., section 1040; 2 Pom. Eq. Juris., section 935; Haven v. Thompson, 26 N. J. Eq., 383; Brands v. De Witt, 44 N. J. Eq., 545; In re Garcelon, 104 Cal., 570; Bishop v. Davenport, 58 Ill., 105; Kershaw v. Kershaw, 102 Ill., 307; Crum v. Sawyer, 132 Ill., 443; In re Powers Est., 63 Pa. St., 443; Wethered v. Wethered, 2 Sim., 183; Stover v. Eyclesheimer, 3 Keyes, N. Y., 622; Curtis v. Curtis, 40 Me., 24; Fitzgerald v. Vestal, 4 Sneed, Tenn., 258; Quarles v. Quarles, 4 Mass., 680; Kenney v. Tucker, 8 Mass., 143; Trull v. Eastman, 44 Mass., 121; Wright v. Bucher, 72 Mo., 179; McDonald v. McDonald, 5 Jones Eq. N. C., 211; Merriwither v. Herran, 8 B. Monroe, Ky., 162; Needles v. Needles, 7 Ohio St., 432; Hart v. Gregg, 32 Ohio St., 511; Rosenthal v. Mayhugh, 33 Ohio St., 168; Young v. Hicks, 92 N. Y., 235: In re Estate of Noah, 73 Cal., 583.
    While the petition is silent upon the subject of the character of the deed made by Smith to his wife for the part of lot 501, and does not state whether it was or was not a warranty deed, yet the contract provides that it was to be conveyed to plaintiff in “fee simple” and “with full power of incumbrance and sale” without his consent. The contract, in terms provided for a full title, a complete relinquishment of all claims, whether vested or contingent and full power of disposition. What more could it do ? And had plaintiff in error died first, can there be any question but that Charles D. Smith would have been estopped to claim an interest in lot 501, because of his survivorship? It is not necessary to an estoppel that there be an intent to deceive, it is sufficient if the actions of the party had that effect.
    Under our law a husband or wife can not b3r will cut off the other from dower,- or a distribution share in the personality. Revised Statutes, 5963.
    The widow or widower has an election to take under a will, or under the statute, within a prescribed time. Young v. Hicks, 92 N. Y., 235; Estate of Noah, 73 Cal., 583.
   Minshall, J.

The brothers and sisters of Charles ,D. Smith, deceased, brought suit in the common pleas of Athens county, against Lizzie Smith, the widow of the deceased, to compel a conveyance to them of the land she inherited from her deceased husband. He died seized of the land and without issue, and, being non-ancestral, descended to her as his surviving wife, under the provisions of section 4159, Revised Statutes.

The conveyance is sought by reason of the provisions of an agreement of separation that had been made and entered into between them during their marriage. It is as follows :

“Agreement made and entered into this 8th day of July, 1891, by and between Charles D. Smith and his wife, Lizzie Smith, witnesseth, that said parties- having concluded that they can and will live together no longer as husband and wife, not being able to dwell together in peace, they do mutually agree to the following division of the property of said parties: Said husband agrees to convey in fee simple to his said wife, part of in-lot 501, in the village of Athens, Ohio, * * * and to also pay said wife the sum of $500.00 cash in hand, to allow her to remove all furniture belonging to her, and each party releases any and all claim, right, title or interest, either vested or contingent in or to any property, present or future acquired belonging to the other, and it is further agreed, that if either should secure a divorce, that neither shall ask or receive any alimony of the other, and each party agrees to execute any .deeds or papers necessary to convey a clear title that the other may ask to property owned by him or her free of any further compensation than herein provided, in order tha-t the spirit of this agreement may be carried out, and it is agreed that each may have free and. untramm eled use and enjoyment of the property owned by them respectively, with full power of encumbrance or sale without the other’s consent. It is further agreed, that if said wife should agree, to sell said real estate, she shall give said C. D. Smith, the option to take it at the price she may finally agree to take of any other person. Witness our hands the day above written.
“Charles D. Smith.
“Mrs. Lizzie Smith.”

The common pleas sustained a demurrer to the petition and dismissed the action; on error, the circuit court reversed the judgment and remanded the cause to the common pleas for further proceedings.

No question is raised as to the validity of the agreement; and it is well settled that such agreements when reasonable, and fairly made and entered into will be enforced. Nor is there any question that, but for this agreement, the widow, Lizzie Smith, would be the owner of the property at law- and in equity, under our statute of descents. The contention of the brothers and sisters is, that by the language of the agreement, “and each party releases any and all claim of right,’title or interest, either vested or contingent present or future acquired, belonging to the other,” she is precluded now from the right to take or claim the property as the heir of her deceased husband under the statute, and that she should be required to convey it to them. The only question that need be determined in this case is, as we think, whether by the above language, she thereby waived the right to inherit such property as her husband might die seized of; if not, then it is not necessary to determine whether an agreement for a consideration to renounce an expectancy of inheritance, is valid or not. It has generally been held not to be the subject of a contract of any kind. Needles, Exr. v. Needles, 7 Ohio St., 432, and authorities there cited. But conceding the contrary to be true what then is the proper construction of the language in the agreement, just quoted ? After carefully considering it, in connection with the whole agreement, we are satisfied that it cannot be construed to include the wife’s expectancy of inheritance under the statute of such real property as her husband died seized of, and intestate. Broad as the language is, it falls short of this construction. It simply includes a “vested or contingent” title or interest in any of the property “belonging to the other” — that is, such an interest as cannot be affected by any disposition made of it by will or otherwise, by the one without the consent of the other. But an expectancy of inheritance by one of the property of another is not such an interest. It is regarded in law as a mere possibility, as it may be disposed of by the ancestor, either by deed or will as he may see fit; and is therefore neither a vested nor contingent right of any kind. A contingent right of whatever. nature in any subject of property, is one so far fixed that it cannot be affected by the disposition of any one subsequent to its creation without the consent of the party affected.- It may never take effect as a vested estate, for the contingency may never happen on which it is limited; hence it can not and does not rest upon the uncertainty as to whether one, who is the owner of the property in fee simple, will exercise the power incident to his ownership of disposing of his property as he sees fit, or not. Such an interest is not a contingent one within the meaning of the law, but.a mere possibility and in no way the subject of property.

There is nothing unfair nor unreasonable in the construction given this agreement. It gives full effect to what must be supposed to have been the object of both parties to it. They were dealing with respect to each other and not with respect to others. Each desired to secure the full dominion of the property allotted to himself or herself, and did so by this agreement. Each, by the agreement, acquired the right to dispose of the property given him or her to whoever either might see fit, without the consent of the other. This is seen more clearly from the stipulation, that each should have the “free and untrammeled use and enjoyment of the property owned by them respectively, with full power of incumbrance or sale without the other’s consent.” They were not then dealing for their heirs or for any one else, but for themselves. Though under the terms of the agreement they lived separately, yet they chose to sustain and did sustain to the time of his death, the relation of man and wife. Whilst he might have disposed of his property by will or by deed of conveyance to .his brothers and sisters, yet he did nob, but left it to descend as at law. How then, can a court say that this, under the agreement, is contrary to his intention, and that his widow, to whom the property has descended, shall be compelled to convey it to his brothers and sisters ? They are simply volunteers, and have no rights with respect to the inheritance other than such as are derived from the law. Permitting the widow to take the inheritance under the statute does not violate a single term of the contract of separation. He enjoyed during his life the- full dominion of his property, and that is all he stipulated for. He could, had he desired, in the exercise of this full dominion, have given the property to his brothers and sisters, but he did not. Hence, permitting the property to descend as appointed by the law, can be a matter of surprise or injustice to no one living or dead. The fact that they lived separately is not a sufficient reason for supposing that he desired that his property should descend, to his brothers and sisters, rather than to his wife. It is reasonable to suppose that he knew that he could dispose of his property by will as he saw fit, and that from making no will he purposely left it to descend to his wife. But it is not now-material what he may have .thought about it. The agreement contains no stipulation indicating that either renounced any right of inheritance in the property of the other. All that either renounced, was any right or interest, vested or contingent, in the property of the other, that would restrain the latter in exercising full dominion over his or her portion of the property divided.

The case of Miller, Exr., v. Miller, 16 Ohio St., 528, is relied on in support of the claim of the brothers and sisters. In that case it was decided, that a post-nuptial agreement, whereby the wife for a fair consideration, paid by the husband, relinquishes all claim to a distributive share of his personal estate in case she survives him will be upheld and enforced in equity. The case is distinguishable from the one at bar in two important particulars. (1' The thing to be relinquished is specifically stated — it is, all claim to a distributive share of the husband’s personal estate, should she survive him. In the case, at bar, there is no stipulation to renounce the possibility of heirship, could such astipulation be made. (2) The interest renounced in that case is not a mere expectancy or possibility. The right of a wife to a distributive portion of her husband’s personal estate, in case she survives him, cannot be defeated by the will of her husband. Doyle v. Doyle, 50 Ohio St., 330, And there are many respectable authorities to the effect that it cannot be-given away, in the life-time of the husband, in fraud of her rights. Cases cited in Doyle v. Doyle, supra, 345. It is then such an interest of the wife in the personal property of her husband, as that he cannot by will deprive her of it without her consent. With respect to such an interest a contract by tbe wife to release it to her husband for a fair and reasonable consideration paid her, might, with reason, be sustained against her, as was done in the above case. But this as already pointed out, is not so in regard to the right of inheritance, which depends entirely upon the will of the ancestor.

The judgment of the circuit court is reversed, and that of the common pleas affirmed.  