Eberhart v. Rath

Citations

• 89 Kan. 329
• 131 P. 604
• 1913 Kan. LEXIS 63

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Antenuptial Oral Contract — Reduced, to Writing after Marriage — Valid. A widow residing and owning lands in this state married a man residing and owning property in Nebraska. As part of the marriage contract it was orally agreed that he should receive nothing of her estate in case she died first, and that she should receive the sum of $1000 only of his estate in case he died first.’ After the marriage in Kansas the parties established their home in Nebraska where they resided for seventeen years, when she died, leaving children by a former marriage and a son by her last marriage. Soon after the marriage the husband and wife entered into a written contract, in view of the oral agreement, and of the same purport. In this action for partition brought by the children of the former marriage the surviving husband claims one-half of the land in this state owned by his wife at the time of the marriage and at her death. It is held that the written contract is valid and effectual although it does not recite or refer to the previous oral agreement.</p> <p>2. - Contract — Made in Nebraska — Construed under Laws of Kansas. The validity of the relinquishment by the husband of his rights in the wife’s land in this state under the contract above referred to must be determined by the laws of Kansas although the instrument was made in Nebraska.</p> <p>3. Antenuptial CONTRACT — Validity — Opinions of Lawyers— Not Conclusive. The opinions of witnesses, practicing lawyers of Nebraska, that the agreement and contract referred to in the first above paragraph are invalid, are not conclusive in the absence of a controlling decision in that state. Upon an examination of statutes in evidence, and decisions of the supreme court of Nebraska, it is concluded that such contracts are regarded in that state in the same light as they are viewed here.</p> <p>4. Evidence — Conversation with Deceased Wife — Incompetent. The surviving husband was incompetent to testi