
    David and Esther Mintier v. Ann Mintier. James Mintier v. Ann Mintier. Joseph Mintier v. Ann Mintier. Ann Mintier v. John Mintier.
    [Error to District Court of Harrison county.]
    1. Where an antenuptial contract, intended to operate as an equitable jointure, and to bar all rights of dower, is entered into by parties of mature age, capable of judging in regard to their interests, without any fraud or imposition, and is reasonable in its terms, and has been in good faith carried into effect by the husband during his life, full effect should be given to it, according to the intention of the parties.
    2. In giving construction to a contract, the intention of the parties will govern; and words which, in their strict legal import, are at variance with that intention, will be rejected, or construed so as to comport therewith.
    Reserved by the District Court of Belmont county.
    On the 20th day of July, 1868, Robert Mintier and the defendant in error, Ann Mintier, made an antenuptial contract in writing, a copy of which is attached to the answers of the plaintiffs in error and of John Mintier. Afterward, and on the same day, Robert and Ann were married. At that time Robert had legal title to three farms in Harrison county, Ohio, and one farm in Belmont county, Ohio, which the defendant in error avers, in her replies to the amended answers of the plaintiffs in error and of John Mintier, were worth about $28,000. Robert died March 23, 1870. On the 14th of January, 1869, he conveyed by deed one of the Harrison county farms to the plaintiff' in error, James Mintier, and, on the same day, conveyed by deed another of the Harrison county fanns to his son Joseph, and the other to his son David and his daughter Esther, and the Belmont county farm to his son John. The defendant in error did not join in these conveyances.
    After Robert’s death, Ann, his widow, filed petitions for dower in Harrison county against the respective grantees of the three tracts in that county, and in Belmont county against John Mintier.
    The grantees, in their answers, set up the antenuptial contract in bar of dower, and, as an additional defense, James and John claim that before the marriage they had purchased from Robert the farms conveyed to them respectively by verbal contract, and that their contracts were so far performed as to take them out of the statute of frauds, and entitle them to hold the lands free from any claim of dower by Ann.
    In September, 1871, the cases were all tried in the district court, to which they had been taken by appeal from the common pleas.
    Iu John’s case, in which the common pleas court dismissed the petition, the District Court of Belmont county found the facts and reserved all the questions arising upon both the defenses, for decision by the supreme court, “ being of opinion that difficult and important questions arise in the case.”
    In the other cases, the District Court of Harrison county decreed dower to Ann.
    The antenuptial agreement set up in the answers of defendants below, in bar of the claim to dower, is as follows:
    “Agreement made by and between Robert Mintier and Ann Neiswanger—
    
      “ Witnesseth: Whereas, said parties have entered into a contract of marriage, and agreed to be married and live together as husband and wife; now, in contemplation of said marriage, they have agreed, and hereby do agree and arrange, as to property, as follows :
    “ 1. Said Robert Mintier makes a bridal present to his intended wife, forthwith, of one thousand dollars, to be her own separate property.
    “ 2. Said Ann to hold and retain all of the property of every kind now owned by her, as her own separate property, with all increase, income, rents, and profits thereof, free from the control of said Robert.
    “ 3. Said Ann to have as her own all such other property, rights or interest in property as said Robert may at any time give her, or may grant, devise or bequeath to her, and in case she survives said Robert, she is to have as her own all the household goods and furniture owned by the said Robert at his death, and all other personal property, goods, chattels, and moneys which they or either of them may hereafter acquire-or make or save by industry or economy.
    “ And the said Ann Neiswanger on her part agrees, in consideration of the above, to release, and does hereby release, to the heirs and assigns of said Robert, all right or claim she would acquire by said marriage to dower in the real estate of which said Robert may die seized, and to any distributive share out of any notes, bonds, mortgages, and moneys on interest now owned by said Robert, and agrees never to set up any claim to dower above specified, or to any distributive share of said personal property.
    “ Witness our hands and seals the 20th July, A. d. 1868.
    “ Robert Mintier, [seal.]
    “ Anne Neiswanger, [seal.]
    “Attest: Eli T. Sheppard,Dewis Lewton.
    “ Received, July 20,1868, of Robert Mintier, one thousand dollars present above named.
    “ Anne Neiswanger.”
    To the answers setting up this contract, plaintiff below replied as follows:
    
      “ 1. The plaintiff says that she is not barred of dower in-the premises described in the petition by the antenuptial contract set up by defendant’s amended answer.
    “ 2. The plaintiff for a further reply says that at the -tóme said antenuptial contract was made, said Eobert Mintier owned and possessed real estate worth about $28,000, and represented to plaintiff'that his personalty was about $2,000, and that his yearly income was about $1,200, and that if plaintiff was economical, they could save out of said income from five to six hundred dollars per year. And she avers that said conveyance was made and received with the intention to deprive her of said savings and accumulations under said contract, and that the moneys and notes received as the consideration of said conveyance were immediately given away to certain of his children, with the intention to prevent plaintiff’ having any distributive share therein by the law, or any interest therein under said contract, and she has received nothing under said contract except the one thousand dollars alleged, either by said Eobert in his lifetime or by his administrator since his death. And she avers that all this has been done in order to deprive her of her rights under said contract, and in violation of the same. And she avers that said contract has not been duly and fairly performed, either by said Eobert or his said administrator. Wherefore she prays that her dower may be allowed as before prayed.”
    In addition to the antenuptial contract, oral testimony was offered on the trial in the district court, as follows :
    “ The plaintiff, to maintain the issues on her part, called Lewis Lewton, who testified that he drew up the ante-nuptial contract between plaintiff and said Eobert Mintier on the day of its date. That said Eobert stated his age to the plaintiff then to be seventy years, and that his income was derived mostly from the rents of his lands and amounted to something over $1,200 per year, but that it took nearly $200 per year to pay his taxes, and that they would have over $1,000 per year to live on, and if she was as economical as she said she was, they could save out' of Ms income between $500 and. $600 per year, wbicb sbe would have at bis death as savings, instead of tbe dower wbicb sbe was releasing, and that be thought there would be near ten.years of life for him yet. That said Robert stated to the plaintiff at tbe time that all the personal estate be had was $2,000 in money loaned out, and a few articles of goods and chattels of little value.
    “ The defendants also called James Hendei'son, who testified that said Robert Mintier, as be understood, was in bis seventy-fifth year when be was married to the plaintiff and was in bis seventy-seventh year when be died. That said Mintier bad ten children — seven sons and three daughters —and that at the time of said marriage said Robert Mintier’s real estate was of tbe value of about $28,000, all of which be sold and conveyed away to bis children by deeds dated 14th of January, 1869, and that the said Henderson was the executor of tbe will of said Robert Mintier, and there bad come into his bands tbe personal estate, amounting to near $4,700, of wbicb amount $2,500 was of tbe moneys paid to said Robert on sale of his land on said 14th of January, Í869. He further testified that he bad notified tbe plaintiff by letter that tbe few articles of household goods and furniture owned by said Robert at bis death were at bis late residence, subject to her order.”
    Plaintiffs in error seek to reverse tbe judgments of tbe District Court of Harrison county on tbe ground of error in decreeing dower to plaintiff", below under tbe state of facts shown by tbe pleadings and evidence. The opinion of tbe court renders it unnecessary to state tbe evidence offered under tbe second defense of James Mintier.
    Eor the same reason it becomes unnecessary to state tbe facts found by tbe District Court of Belmont county in regard to the second defense set up by John, which was similar to tbe second defense of James. It is sufficient to say that the district court found, tbe antenuptial agreement to have been made between the parties, as stated in the proceedings; that tbe date of tbe marriage and death of Robert and of bis conveyance to John were as has been stated; and that his pecuniary circumstances were substantially as stated in the testimony of J ames Henderson.
    
      John S. Pearce, L. Panford, and P. P. T. Cowen, for plaintiffs in error and John Mintier.
    J. M. Estep, for defendants in error.
   Scott, Chief Judge.

If the antenuptial agreement in this case was intended by, the parties to operate as an equitable jointure, and as such to bar all claims of the wife to dower in the real estate of the husband; if the parties were of mature age, and capable of judging in respect to their interests ; if the agreement was fairly entered into in good faith, and without any fraud or imposition; if it was reasonable In its terms, and was in good faith acted upon and carried into effect by Robert Mintier during his life, no good reason is perceived why full effect should not be given to it, according to the intention of the parties.

The plaintiff below does not, in her pleadings, complain of any fraud, imposition, or false representations, by which she was induced to enter into the antenuptial contract; she alleges no lack of judgment’ on her part, nor does she complain that the terms of the contract were unreasonable. And when we consider that Robert Mintier was, at the date of the marriage, some seventy-four years old; that, from his advanced age, the coverture must have been expected to be of short duration; that she brought no property to her husband, but was allowed to retain all her property (amounting to $1,000 in value), free from her husband’s control; that she was to be paid $1,000 in hand'before the marriage, and that she was to enjoy as her own, if she survived her husband, all that they, or either of them, might acquire or save during the coverture, together with all such household goods and furniture as Robert might own at his death, we can not say that this contract was clearly unreasonable, or even illiberal, in its provisions for her benefit.

Nor, as we have said, does the plaintiff below rest her claim to dower on any such ground; but she does claim, first, that by the terms of the antenuptial contract she only released her right to dower in the real estate of which said Robert Mintier might die seized; that he did not die seized of the premises in which dower is demanded, but conveyed the same to the defendants below during, her coverture with him by deeds to which she was not a party.

And this brings us to the consideration of what we conceive to be the main question in this case, to wit, the true import and proper construction of the antenuptial contact set up in the answer of defendants below.

It is difficult to resist the conviction that the parties intended by this contract to specify fully what the prospective wife of Robert Mintier should receive and accept in lieu of the right of dower in his real estate, and distributive share of his personal property to which she would by the contemplated marriage be entitled, in the absence of any agreement to the contrary. The basis of the agreement seems to have been substantially this, that, in consideration of the provisions made in her favor by the contract, she should have no claim on his property already acquired, whether real or personal, but that he should be at full liberty to dispose of the same as he might think proper during his life, or by last will and testament, and that what they might acquire subsequently to the marriage by industry, or save by economy, should be hers if she survived him. The agreement, on its face, is shown to have been entered into for the express purpose of arranging or settling all the rights of the parties as to property. It was intended as a full “agreement and arrangement” on that subject.

It can scarcely be doubted, from the fact that the plaintiff below, in the antenuptial contract, releases expressly, “to the heirs and assigns of said Robert Mintier, all right or claim he would acquire by said marriage to dower ” in his real estate; that the conveyance and alienation of such estate by Robert during his lifetime was in the contemplation of the parties, and that it was intended that such conveyance might be made free from any right or claim to dower therein on the part of said Ann. Yet, strangely enough, we find the release of dower to his assigns is, in terms, limited-to “ the real estate of which said Robert may die seized.” Could the technical language of this limitation have been purposely inserted in the contract, with an understanding by the parties of its import, or may it be regarded as mere legal phraseology and verbiage employed by the draftsman without due consideration, and ignorantly adopted by the unlearned parties to the contract ?

It must be conceded that effect should, if possible, be given to all the terms of the contract so far as may not be inconsistent with the clear intention of the parties; yet, in giving construction to a contract, technical language which, in its strict legal import, is inconsistent with the manifest intention of the parties, should doubtless be rejected, or so construed as to comport with that intention.

In the case before us, it is very clear that the parties intended to provide by the antenujrtial' contract that the lands of which Robert Mintier was seized at the time of his marriage, if he continued to be so seized of them till his death and should die intestate, should descend to his heirs, free from any claim to dower therein on the part of Ann, his prospective wife. She expressly “ releases to his heirs all right or claim she would acquire by her marriage to dower ” therein. She similarly releases all right or claim to dower to his assigns. Any restraint upon his -power of alienation and conveyance free from dower, during his life, would be a serious inconvenience and detriment to him. And it is scarcely conceivable that she should have asked, or that she should have consented to the imposition of such a restraint, unless for the purpose of securing some benefit or advantage to her. Net the contract manifestly, left him at liberty to devise, by last will and testament, the lands in which dower is now demanded to his children, in whose possession and occupancy they were at and for several years prior to the date of the antenuptial contract. And during his lifetime he could have left the lands in the occupancy and control of his sons, the defendants below, upon such terms &s he chose. Whether he should require them to pay rent, and if so, at what rate, were matters in regard to which the contract in question left him an unlimited discretion. It is wholly silent on the subject. No conceivable prejudice or damage arises to the widow, from the fact that the lands were conveyed to his sons by Robert Mintier, by deeds executed during his life, and not by devise, to take effect at his death.

And it is equally clear that Robert Mintier, the husband and father, might have disposed of these lands substantially as he has done, by executory contracts, made in writing with his sons during his life, the specific execution and performance of which he might have left to be ordered by a court of equity after his death. And in such case it could hardly have been claimed that the plaintiff below had not released dower in the premises by the very terms of the antenuptial contract. And is she at all prejudiced by the fact that such contracts were fully executed by her husband befox*e his death? That they were not left to be carried into execution after his death by a court of equity ? Ox*, by the fact that the title did hot pass by descent or devise ? If these questions must be answered ixx the negative, is it reasonable to suppose that the pax'ties understood and intended that the x*elease of dower should depend upon the time when, or the mode in which, the title should pass froxn the husband to “his heix*s or assigns?” If she intended to release dower only in the lands of which he might die seized, then she did not ixxtend to release dower to his assigns who should become such by the ordinax*y and .usual mode of conveyance by deed. If this, the most common and frequent method of creating assigns, was intended to he excluded from the operation of the release for any conceivable reason, it would be but reasonable to suppose that such a restraint on the husband’s power of alienation would have been expressed in -direct terms, in an agreement which had for its sole object the arx*anging and settling the xúghts of property between the parties, and would not have been left to mere inference from technical language, which, under the guise of generality, imports a limitation not readily understood and comprehended by unlearned persons —such as “ all right or claim she would acquire by said marriage to dower in the real estate of which said Robert may die seized.” We think it much more probable that these limiting words were inadvertently inserted by the scrivener because the children and “ heirs ” of Robert were exclusively in his’ mind at the moment, or upon the supposition that as Ann had agreed to release all claim of dower “ to his assigns” she would execute this agreement by joining with him in any conveyance which he might desire to make during his life, and therefore it was only necessary to provide in regard to the- lands of which he might die seized. Unfortunately, however, relying upon this release as it would seem, Robert Mintier subsequently executed alone the conveyances to his sons for the farms in question.

They were but the execution of previous arrangements between the parties, and it does not appear from the evidence that the plaintiff below was asked and refused to unite with her husband in their execution. Had such refusal occurred, and the attention of Robert had been called to the special terms of the contract, it can scarcely be doubted that his contemplated arrangements for the division of his property among his ten children would have been effected in a mode which would have left no ground for the present claim to dower.

But in- whatever way the limitation of the release under consideration may have found its way into the antenuptial contract, when we consider the circumstances under which the agreement was made, the purpose and intention of the parties in entering into it; when we look at the language which precedes this limitation, and also at that which follows it, in which she releases all right or claim, “ to any distributive share out of any notes, bonds, mortgages, and moneys on interest now owned by said Robert, and agrees never to set up any claim to dower above specified, or to any distributive share of said personal property; ” when we consider that the release was not to his heirs only, but to bis assigns also, and that the contract, even as written, left Robert at full liberty to dispose of all his lands at his pleasure, free from any claim to dower, provided he retained the legal title thereto till his death, and that she could have no conceivable interest in his retention of the mere legal title, we are clearly convinced that the limitation of the release to “ the real estate of which said Robert may die seized,’ must have been inserted in the contract through inadvertence or mistake on the part of the scrivener, .and does not accord with the actual intention of the parties. We think it evident that the intention of the parties was to extinguish by i'elease all the statutory rights of property which, in the absence of an antenuptial contract, Ann would acquire by the marriage, and to substitute for them the specific provisions made for her benefit by the agreement.

And, indeed, her reply to the answer of the defendants below, setting up this antenuptial contract, seems to proceed not so much on the idea that the contract fairly construed would not bar her claim to dower, as upon the allegation that it was fraudulently violated by her husband during his lifetime. • In regard to this allegation we may say that if Robert had the right, under the contract, to convey his lands to his sons free from any claim to dower, we find nothing either in the findings of fact by the district court in the ease of'John Mintier, or in the parol evi. denee in the other cases, which would justify us in finding that Robert did not in good faith carry out the contract during his life. It is true that parol evidence was offered on the trial in the court below, tending to prove that at the time of making the antenuptial contract, Robert represented that his income was derived mostly from the rents of his lands, and amounted to about $1,000 per year after payment of taxes, and that if Ann would be as economical as she said she was, they could save out of this income five or six hundred dollars per year, which she would have at his death as savings, instead of the dower which she was releasing. These representations' are not shown to have been in any respect untrue.

It also appears from the testimony of the executor of Robert, that his personal estate at his death amounted to nearly $4,700, of which $2,500 was moneys paid to him on sale of his lands to his sons, the defendants below.

"Whether these representations as to his income, which were no doubt true of the past, were intended to be, and were in fact, relied upon as a warranty in regard to the future, may perhaps well admit of grave doubt. And if such were the fact, still as Robert lived less than two years after the marriage, and received $2,500 from his sons on sale of his lands to them, which came to the hands of his executor, and to which Ann has not, by the terms of the contract, released her right to her distributive share, it is at least questionable whether these representations have not been fully made good to her. Hut, be this as it may, these are questions to be' settled between her and the executor of her husband. No rights accruing to her under the contract during her husband’s life were withheld from her. And she has a full remedy against his executor, if any of her rights under the contract, are denied to her after his death. It is to be observed that she does not seek to rescind the antenuptial contract, and place the estate of her husband in statu quo, by returning the $1,000 received by her in consideration of her release of dower. Hut, retaining all the benefits secured to her by the agreement, she claims dower in all the lands of her husband, as though no contract had been made on the subject, or as though her right to.dower was not released by its terms fairly construed. As she does not ask for a rescission of the contract either on the ground of fraud in its inception or its execution, nor offer to return what she has received under it, we think her rights must be deter-mined by it, and if her rights under it have been denied or refused to her by the executor, her remedy is by action against him, and not against the grantees of her husband, who have ’ paid full value for the lands in which she seeks dower.

In accordance with these views, her petition in the case of John Mintier, which was reserved in the District Court of Belmont county, will be dismissed, - and in the other cases which come before us, upon error to the judgment of the District Court of Harrison county, the judgment of that court will be reversed, aiid the causes be severally remanded for trial and judgment -in accordance with this opinion.  