Lathrop v. Myers

THOMPSON (IRA F.), J.

This is an appeal from an order granting a family allowance to the widow of deceased. The appeal is taken by the residuary legatee under deceased’s will, who is a daughter of the latter by a former marriage. No children were born of the second marriage. The appeal is based upon an antenuptial contract executed in the state of Iowa by the deceased and respondent, the material portions of which read as follows:

“ ... [I] t is hereby agreed that each of said parties to this Ante-Nuptial Contract hereby agrees to waive, and does hereby waive, all and every right whatsoever which he or she might have or acquire by law by such marriage in any and all property of every kind and character, real, personal or mixed, now owned or which may hereafter be acquired by the other party; it being understood and agreed that all of the property and property rights which each of these parties now has, or which each may hereafter' acquire, shall pass to her or his heirs at law, devisees or legatees in precisely the same manner and with the same effect as though no marriage were ever consummated.

“It is further agreed that each party hereto shall have control and management of, and the right to sell, convey or transfer any and all of their separate properties during marriage without the signature or joining in by the other, as freelv as if no marriage had taken place.”

The cases cited by appellant are distinguished from the situation here by reason of the fact that in those cases 'the parties separated and entered into agreements which specifically provided that the support of the wife should be waived. It is to be observed that in the instant case the contract contains no such provision, but only provides that the property shall pass to the heirs of the parties as though no marriage had been contracted. Here also the parties lived together until the death of the husband, he supporting her up to that time, and under his will granting her a life estate in the home in which they had lived.

Estate of Woodburn, 212

Cal. 683 [300 Pac. 22], is, we think, decisive of the present appeal. In that ease an antenuptial agreement was executed by the intending spouses

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