
    CASE 96 — SUIT BY THE CENTRAL. TRUST CO. AGAINST KATE SETTLES, ALEXANDER SETTLES AND OTHERS. —
    December 10.
    Settles v. Settles
    Appeal from Daviess Circuit Court.
    T. F. Birkhead, Circuit Judge.
    From a judgment in favor of Alexander Settles and others, defendant Kate Settles appeals —
    Affirmed.
    1. Husband and Wife — Antenuptial Contract — 'Validity.—On an issue whether a wife was misled and deceived by her husband as to an antenuptial contract, evidence held insufficient to show such to have been the case.
    2. Same. — The intended marriage was a sufficient consideration to support an antenuptial contract, whereby the wife relinquished all right to dower and to share in the husbandfe personal estate and the husband relinquished ¡any interest in the wife’s estate.
    ' LAVEGA CLEMENTS and WILFORD CARRICO for appellant.
    SWEENEY, ELLIS & SWEENEY for appellees.
    (No briefs — record out of clerk’s office.)
   Opinion of the Court by

Judge Settle —

Affirming.

Louis Settles died in Daviess county intestate. He was then residing on his farm, about two miles from ' the city of Owensboro, and was survived by bis wife, the appellant, Kate Settles, and four adult sons by a former marriage, viz., the appellee Alexander Settles, Ambrose Settles, and William Settles, who are his only heirs at law. The intestate owned at the time of his death the farm mentioned, consisting of 150 acres, worth from $15,000 to $20,000, and personal property to the amount of $5,000. The appellee Central Trust Company, of Owensboro, duly qualified as administrator of his estate, and thereafter brought suit in the court below to obtain .a proper settlement thereof, making the widow and heirs at law defendants. The supposed necessity for suit was the existence of an antenuptial contract between the intestate and his wife, which it was alleged the latter was attempting to repudiate in order to compel the administrator to account to her out of the intestate’s estate for the value of the articles of property exempted by the statute and directed to be set apart to the widow of an intestate husband and for onehalf of his surplus personal estate; it being-further alleged that the widow had demanded of it as administrator such exempt property and one-half of the surplus personalty, and was threatening to bring an action therefor. The widow filed an answer to the petition, which was made a counterclaim as to the administrator and cross-petition against the heirs at law, in which, she in substance set up the facts that she was 34 years of age, a widow, and the mother of two children at the time of her marriage to the intestate, Louis Settles, who was then 68 years of age; that she was an uneducated woman, ignorant of business transactions, and unacquainted with the value of his estate; that four days before her marriage with the intestate he caused the marriage contract referred to to be written by a lawyer; and that two days before their marriage she and the intestate signed and acknowledged it before the clerk of the Washington county court, in whose office it was duly recorded. The pleading in question contains the further averments that the property, real and personal, of which the intestate died seised, was worth from $20,000 to $25,000, and that $2,000, the amount the antenuptial contract provided should be paid her, in case she survived the intestate, and to her two children if her death occurred before that of the intestate, was inadequate, unreasonable, and' disproportionate, and therefore she asked to be allowed to renounce the marriage contract, that it be set aside by the court,, and she be adjudged entitled to receive of the intestate’s estate such share as the statute gives the widow of an intestate husband at his death. By an amendment to her answer and cross-petition appellant alleged that she did not understand the marriage contract when she executed it; that she neither consulted any one, nor was advised about it, but “relied solely upon the said Louis Settles, who, she says, misled and deceived her, but for which she would not have executed said contract.” The heirs at law filed answers to the cross-petition and amendr ment, controverting their averments. After the taking of depositions the case was submitted for trial and judgment to Hon. Malcolm Yeaman, of the Henderson bar, as special' judge; the regular judge of the Daviess circuit court having, for reasons satisfactory to himself and the parties, declined to preside. Upon the hearing the special judge rendered judgment declaring the appellant, Kate Settles, not entitled to the relief sought, and dismissed her action; and she, being.dissatisfied with the judgment, has appealed.

Waiving all questions raised by appellees as to the insufficiency of the answer and cross-petition as amended, with the mere expression of opinion that it stated a cause of action which, if supported, by evidence, would have entitled appellant to the relief asked, we will proceed to a consideration of the case upon its. merits. While the antenuptial contract made by appellant with her deceased husband is not assailed upon the ground of fraud, she insists that she did not understand it when executed, and that she was misled and deceived by her husband, and thereby induced to execute it. It remains to be seen whether this charge receives any support from the evidence. What were the facts? There can be no doubt from the evidence that appellant had a previous acquaintance of several years’ standiug with her husband when she married him. A sister of hers was the wife of his brother, and she had more than once visited and spent some time with her sister, who lived in Daviess county and in the neighborhood of the decedent. At such times* appellant frequently met him and had opportunities for ascertaining what property he had and its value. According to the evidence he repeatedly visited her at her home in Washington county for about a year before the marriage. It does not appear from the evidence that he was a reticent man as to his business affairs, and from her previous acquaintance with him and obvious knowledge of the purpose of his visits to her it is improbable that she should have failed to acquire some information as to the quantity and value of his estate, for the means of her doing so were manifestly at hand. It is further improbable that a young woman ■ and mother of two young children, such as she was, however great her needs, should have embarked in a matrimonial venture with a man of his age — just twice that of her own.' — without knowing in advance what provision he would be willing to make for her and her children. The marriage must have been largely one of convenience, and such marriages are not usually effected without some consideration of property acquisition or other practical benefit. Whatever may have been appellant’s motive for entering into the marriage — and we do not mean to intimate 'that she acted from an improper motive'— the evidence does not show that she was without means of learning all that she could have desired to know about the financial worth of the man she married.

It is a signifiicant circumstance that no witness introduced by her testified to any act or declaration of the deceased husband that indicated any effort on his part to conceal from appellant’s knowledge what property he had or its value; and there was no proof whatever of his making any representation that was untrue, or holding out any improper inducement to her to enter into or execute the marriage contract. On the contrary, there was much testimony conducing to prove that appellant’s mother and brother were consulted by the decedent on the subject of his marriage to her. Indeed, the mother and' brother, with whom appellant and her two children were then living, in Washington county both testified that the intestate, two days before the marriage, and before the antenuptial contract was signed or acknowledged, asked their consent to his marriage with appellant, although such consent was not legally necessary, and also requested each of them to read the contract in question, which he handed them for that purpose, accompanying the act with a statement as to its provision for the benefit of appellant’s children in the event she did not survive him.. It is true the mother said that they declined to read the contract, evidently because they thought appellant capable of entering into such a contract without their advice or assistance; but in any event it is patent that, in thus conferring with them with respect to the contract and asking them to read it, the intestate, instead of being guilty of any concealment with reference to his estate, or his intentions with respect to his future wife, was acting'in good faith, and desirous, not only that appellant, but that her entire family, should know the full nature of the antenuptial contract, and what its provisions were with respect to appellant and her children! In addition, when he offered to show the contract to the mother and brother of appellant, he went to them, as the mother testified, from the presence of appellant. It is but fair to presume, therefore, that his purpose to explain the meaning of the contract to the mother and brother, and to allow them to read it, was with appellant’s knowledge, or at her request. Moreover, it is further to be presumed that, when she went with the intestate to the office of the clerk of the Washington county court,' that officer, before taking her acknowledgment to the contract, ‘explained its meaning and effect to her. In brief, there was nothing attending the intestate’s courtship of appellant, or the circumstances surrounding the execution of the antenuptial contract, or the marriage, that indicated any concealment upon his part as to the nature or value of his estate, or any intention to mislead or deceive the appellant. There was certainly no undue haste in the execution of the contract, and there was ample time afforded appellant to have objected to or withdraw from the contract between the date of its execution and her marriage with the intestate. There is an entire omis sion from the record of any evidence tending to show either concealment, deception, or fraud upon the part of the intestate in the procurement of the_ antenuptial contract. The provision made for appel lant by the contract might with some show of rea son have been deemed inadequate, but for the further provision for the benefit of her infant children; and, while the beneficial interest given the children was. contingent upon the occurrence of their mother’s death before that of the intestate, it was nevertheless an interest of which she could not have deprived them, by repudiating or procuring the cancellation of the contract before the intestate’s death. Therefore, she was estopped to do so after his death. In the light of the facts and circumstances the execution of the antenuptial contract and the subsequent intermarriage of appellant and the intestate, it cannot he said that the provision made for her was so grossly inadequate as to have resulted from concealment, duress, deception, or fraud on the intestate’s part in obtaining appellant’s acceptance thereof.

There was no evidence that tended to show that appellant was incapable of understanding the contract ; and, this béing true and appellant being of full age, it must he taken for granted that she possessed the necessary capacity to understand the contract and was in eyery way qualified to enter into it. Prom the execution of the ante-nuptial contract down to the death of her husband appellant was never heard to complain of or object to its provisions. She was evidently satisfied with it until after his death, and as a circumstance tending to show that she was not uninformed at the time of executing the contract as to the quantity and value of bis estate she told the witness Amanda S'ettles, some time after, her marriage with the intestate, that “he didn’t have the money everybody thought he had.” It is hardly probable that she would have made such a remark unless she had taken pains to inform herself before the marriage of what estate he owned, and had afterwards discovered that it was not as valuable as she had supposed 'before marriage. In other words, this remark would seem to indicate that he did not own as much property as she then believed he possessed. The contract in the instant case is not so unusual in its terms as to render it per se inequitable. By it the appellant i elm quished all right to dower and to share in the distribu, tion of her intended husband’s personal estate, smi the husband any interest that he might have cla'mod as survivor in whatever estate the wife may have owned at the time of the marriage or at her death. In addition, it provided for payment to her at the husband’s death of $2,000 out of his estate, and further provided that, if she died before the husband, this $2,000 should be paid to her two children by a former husband. The ,latter provision shows tbe intestate’s appreciation of appellant’s solicitude for her children, and indicated a desire on his part to have her feel that, in the event her death should occur before his, her offspring would not be left wholly unprovided for, although they had no claim upon his bounty. %

We are not aware that this court has ever condemned an ante-nuptial contract made under such circumstances as attended the execution of this one. On the contrary, it has in several instances sustained such contracts made under similar circumstances, upon the ground that the intended marriage alone, in the absence of fraud, concealment, or duress, was a sufficient consideration to uphold it, Forwood v. Forwood, 86 Ky. 114, 5 S. W. 361, 9 Ky. Law Rep. 415; Crostwaight v. Hutchison, 2 Bibb 408, 5 Am. Dec, 619; Mitchell’s Admr. v. Mitchell, 4 B. Mon. 380, 41 Am. Dec. 237; Bishop on Married Women, vol. 1, section 775. Upon the whole case we are satisfied that the conclusion reached by the learned and conscientious special judge who decided this case is correct.

The judgment is therefore affirmed.  