McMinimee v. McMinimee , 238 Iowa 1286 ( 1947 )

I am unable to agree with the majority opinion and therefore respectfully dissent.

Plaintiff-appellee is the surviving spouse of A.C. McMinimee, who died intestate. He is survived by children of a former marriage, who are defendants-appellants. Prior to the marriage of appellee and decedent they entered into an oral antenuptial agreement, which was reduced to writing after the marriage.

The agreement states that each has property and children by former marriages; that they desire that their marriage should not in any way change their then-existing legal rights, or the existing rights of their children in the real and personal property of each of them; and:

"Whereas * * * if the First Party [decedent] should survive the Second Party [plaintiff-appellee], the First Party should not as surviving husband make any claim to any part of the estate of which the Second Party might be seized and possessed, and further agreed that in consideration of said marriage, he waived and relinquished all right in and to the property of which the Second Party might die seized * * * whether as surviving husband, heir at law or otherwise, and

"Whereas, it was further agreed * * * that if the Second Party should survive the First Party, the Second Party should not as surviving wife make any claim to any part of the estate of which the First Party might die seized or possessed, and the said Second Party in consideration of said marriage, expressly waived and relinquished all right in and to the property of which the First Party died seized * * *."

At the time of the marriage and at the time of the death of decedent he owned the property in question and had been and was occupying it as a homestead. Appellee, by a suit in equity, asks that the prenuptial contract be construed to give her the right to occupy the homestead property as long as she lives, and if not so construed, that the contract be reformed to express such right. The claim is made against the heirs of decedent, who are denying her such right under the contract.

The trial court held the contract denied her such right but reformed the same so as to allow it. This court, in Division I of the majority opinion, holds such reformation was error, and in this I concur. The opinion, in Division II, then construed the contract, as reduced to writing by the parties, to give her not the relief asked, which was to occupy the homestead as long as she lives, but the right to occupy the homestead until it is otherwise disposed of according to law. It is this holding that I am unable to agree with.

Whatever the right of the surviving spouse may be, the same is statutory. If the deceased spouse dies testate the survivor may accept the provisions in the will or reject the same and take dower (distributive share). Section 636.21. (All Code references are to the 1946 Code unless otherwise stated.) If decedent dies intestate the survivor is entitled to dower (distributive share) to the extent of one third of the real estate, generally speaking, section 636.5; which share may include the homestead, section 636.7. This dower may be set off at any time after twenty days from the death of decedent and within ten years. Section 636.9.

Section 561.1 provides that the house used as a home by the owner may become the homestead and which, if there be no survivor, descends upon the death of the owner to his or her issue, according to the rules of descent, section 561.18. Section561.12 provides that the survivor may elect to retain the homestead for life in lieu of the distributive share. Section561.11 provides that the survivor may continue to possess andoccupy the whole homestead until it is otherwise disposed of according to law, but the setting off of the distributive share in the real estate of the deceased is such a disposal. Section636.27 provides that within six months after written notice to the survivor, given by any heir of a deceased intestate, the survivor may elect to take the distributive share or the right to occupy the homestead.

There is no question but that antenuptial contracts are recognized and given effect in this state. In the very recent case of In re Estate of Parish, 236 Iowa 822, 830, 20 N.W.2d 32, 36, we said: "Antenuptial contracts are looked upon with favor by the law and are to be liberally construed to carry out the intentions of the parties." (Italics added.) Thus in construing this contract a liberal construction should be given to its terms.

There is no dispute but that, under the terms of the contract, appellee has waived and relinquished her distributive share and has consequently lost any rights she may have had under sections636.5, 636.7 and 561.12. Section 636.27 does not give anything to the survivor but refers to the rights under section 561.12 and provides the heirs of the intestate with a means to force a termination of the rights granted under section 561.11. The majority opinion nullifies section 636.27 by holding that the right to a distributive share is waived but the rights under section 561.11 still exist in the survivor.

Appellee relies upon a line of cases starting with Mahaffy v. Mahaffy, 63 Iowa 55, 18 N.W. 685, and it is upon this case that the majority opinion rests. It says that the Mahaffy case announces the rule "that an antenuptial contract by which the survivor agreed to `renounce and relinquish all claim, right, title and interest' in decedent's estate did not affect it" (right to occupy homestead under section 561.12). The opinion also quotes from the case to the effect that:

"The right of the wife to continue in possession and occupancy of the homestead * * * is not a right or interest in his estate which she takes by inheritance, but is entirely distinct from the interests which she takes by virtue of that right. It is a mere personal right to occupy and possess the premises, but is unaccompanied by any title or property interest therein. It does not accrue with the death of the husband, nor is it enlarged or otherwise affected by that event. She had the right to the same extent during his life, and the statute (section 2007 of the Code) simply continues it after his death." 63 Iowa, at page 63, 18 N.W., at page 689.

In my judgment the Mahaffy case simply holds that a relinquishment of "dower and inheritance" relinquishes merely that, nothing more. The court there clearly states that the sweeping clause by which the survivor agreed "to renounce and relinquish all claim, right, title and interest" therein, is limited by the prior specific renouncement of "dower and inheritance." In fact, at page 65 of 63 Iowa, page 690 of 18 N.W., it is said:

"There is nothing in the language of his covenant, nor in her agreement to accept the money in satisfaction of her right of dower or inheritance, which by any possible construction can be made to cover or include any other right or interests in theestate, except the one named in express terms by each of the parties. * * * They have identified the particular right or interest in the estate which was the subject of their agreement." (Italics added.)

The Mahaffy case clearly states that the right claimed is a "right or interest in the estate." I agree with the case when it says that the "right to occupy the homestead under section561.12" is not gained by dower or inheritance. It is a right gained by virtue of section 561.12, just as dower is granted by section 636.5.

The majority opinion further states that the same rule applies to release of homestead rights as applies to the release of a widow's allowance under section 635.12. In support thereof is cited the case of In re Estate of Uker, 154 Iowa 428, 134 N.W. 1061. However at page 434 of 154 Iowa, page 1063 of 134 N.W., is clearly pointed out the reason for the allowance rule. We say there, "We have * * * held * * * that such a contract [antenuptial] does not necessarily bar the allowance for support * * * The ground [therefor] is that public policy forbidsinterference with the discretion of the court in such a case." (Italics added.) Under sections 636.21, 636.5, 636.7, 561.1,561.18, 561.11, and 561.12 no discretion rests with the court but rights are granted to the survivor based on her exercise of discretion. There is no analogy between the two propositions.

There is another line of cases, not mentioned in the briefs or the majority opinion, which cast considerable light upon the intent and purpose of section 561.11. In the case of Wadle v. Boston Market Co., 195 Iowa 46, 48, 191 N.W. 528, 529, we said:

"`The right to continue and occupy has its limitations, and ceases when the property is otherwise disposed of according to law; and it is so disposed of when the survivor elects to take a distributive share in the entire property of the deceased spouse.' [Voris v. West, 180 Iowa 138, 142, 162 N.W. 836, 837.]The evident purpose of the legislature in enacting this statutewas to provide that the surviving spouse should have a right tocontinue the occupancy of the whole homestead * * * until eitherthe distributive share or the occupancy of the homestead for lifehad been determined upon by the survivor." (Italics added.)

And at page 50 of 195 Iowa, page 529 of 191 N.W.: "It frequently happens that the heirs * * * do not insist upon a settlement and division of an estate for some considerable time * * * and that during such period * * * the surviving spouse continues in possession of the homestead." In Crouse v. Crouse,219 Iowa 736, 742, 259 N.W. 443, 446, we said: "It [section 561.11] has been called a temporary right * * * and is said to expire after a reasonable time."

It is not claimed that appellee has not waived her right to dower or distributive share, nor that she has rights under section 561.12. As early as the Mahaffy case, we said (at least inferentially) that occupancy of the homestead was a right or interest in the estate. The contract in question clearly states, "* * * the Second Party should not as surviving wife make any claim to any part of the estate of which the First Party might die seized * * * and relinquished all right in and to the property * * *."

Under the precise words of the contract, the rights under section 561.11 are relinquished. Furthermore, as stated in the Wadle case, supra, the purpose of the statute is to give the surviving spouse a reasonable time to elect between dower and homestead for life. Under the contract in question she has elected. She elected when the oral agreement, made in consideration of the impending marriage, was entered into. Having released her rights, not by a specific limitation to dower orinheritance but by a general and all-inclusive statement of "any claim to any part of the estate," she released not only under sections 561.12 and 636.5, as conceded by the majority opinion, but also under section 561.11. By so holding, the homestead, under section 561.18, descends immediately to the appellants the same as though decedent had died before the marriage was performed. The intent of the contracting parties, as expressed in the contract, "said parties desired that their said marriage should not in any way change their then existing legal rights, orthe existing rights of their children and heirs in the real and personal property of each of them" is carried out. (Italics supplied.)

I would reverse the trial court and remand with directions to dismiss plaintiff-appellee's petition.

GARFIELD, J., joins in dissent.