Mann v. Mann's Estate

The opinion of the court was delivered by Ross, J.

This case came to the County Court by an appeal, on behalf of the estate, from the order of the Probate Court, for the district of Washington, decreeing that a homestead be set out of the estate to the plaintiff. The case comes to this court on general exceptions by the estate to the decision of the County Court, on the agreed statement of facts, affirming the decree of the Probate Court. It is not contended that the plaintiff is not entitled to a homestead in the estate, provided she is not legally debarred from claiming such interest, by the. ante-nuptial contract under seal, entered into between her and the intestate. By the contract the intestate promised and agreed to pay to the plaintiff the sum of fifty dollars per year, during his natural life, if she outlived him, but if he outlived her, then fifty dollars per year during her natural life ; and agreed, if any part of said sum should not be paid at his decease, she was to have the balance out of his estate. This sum is declared to be in lieu of homestead and dower. The plaintiff thereby agreed to accept that sum in lieu of dower and thirds, and in consideration thereof that she would not claim a homestead, nor thirds, or assignment, or any further sum, out of the estate of the intestate. It is not contended by either party that the ante-nuptial agreement, so far as it relates to the homestead, falls within the provisions of ss. 5 and 6 of c. 55, Gen. Sts., relating to waiving of dower by jointure, or the other provisions there named.

*54 ■ It is to be observed, that by force of the statute, the homestead vested in the plaintiff on the decease of the intestate (Gen. Sts. 668, s. 5); and that the estate is attempting to set up, and enforce the ante-nuptial agreement to defeat it. It is contended that the marriage furnished ample consideration for the agreement, and that the Probate Court should have enforced it, and have refused to order the homestead set out to the plaintiff. No doubt the marriage furnished sufficient consideration for the agreement. The difficulty does not lie in the want of a -consideration to uphold the agreement. The difficulty arises in the operation of the agree-, ment, and in the power of the Probate Court to enforce it. The contract cannot have the effect of a release, or discharge of the plaintiff’s homestead right. A release or discharge is only predicable of something which éxists at the time the release or discharge is given. When the ante-nuptial contract was entered into, the plaintiff had no homestead in the premises, nor in the estate of the intestate, nor even an inchoate right to one. There was nothing in existence for the contract to operate upon as a release or discharge. It is true a covenant never to prosecute an existing demand operates as a release, to prevent circuity of action. But there must be a demand to release. A release of a future demand, not then in existence, is void. Hastings v. Dickinson et ux., 7 Mass. 153 . Neither can her covenant not to claim homestead, operate as an estoppel on her right of homestead. The plaintiff is claiming the homestead, which the statute vests in her. Her covenant not to do so is executory. A party cannot be restrained, by way of estoppel, from asserting a statutory right, because it is in violation of an executory covenant. Neither can such a covenant be set up, and given operation by way of rebutter, to bar the assertion of the homestead right by the plaintiff. Gibson v. Gibson et al., 15 Mass. 106 ; Sullings v. Richmond et al., 5 Allen, 187 . Her covenant not to claim a homestead in his estate is expressly made to rest upon the consideration of the payments of money, covenanted to be paid by him. His covenant to pay money was extinguished by the marriage, so far as the payments were to be made during coverture. Apparently by the covenant all the sums were to be paid during the coverture. It is true, he cov *55 enants, “ if any part of said sum should not be paid at my decease, she is to have the balance out of my estate.” Notwithstanding this provision, it may be questionable, whether by the terms of the covenant he was not, legally, by the letter of the contract, to pay all the sums, during the coverture; and the same being extinguished by marriage, the consideration for her covenant did not fail, except so far as it rested on the marriage contract, unless she, after the marriage, received some of the payments. In the agreed statement of facts, it is not said that he paid any of the money stipulated to be paid by him. Prom what is said about the payments, on the orders for temporary alimony, it is rather to be inferred that he did not make any payments under the contract. The contention of the estate to have the ante-nuptial contract enforced against the plaintiff’s homestead right, is, in effect, to have the Probate Court decree that she shall specifically perform her covenant, not to claim a homestead from the estate. It is a matter of equity jurisdiction; and that too arising outside of the ordinary matters pertaining to the settlement of estates. The jurisdiction of the Probate Court is general and exclusive, in the first instance, over the ordinary matters relating to the settlement of estates. While it has equity powers, to a limited extent, and more extensively over some special subjects, when it has been conferred by statute, it is not possessed of general equity powers. It has no power to issue injunctions, or make and enforce decrees, for the specific performance of contracts. No power is given to it over homesteads, except to ascertain whether the right exists in a given estate, and if found to exist, to set it out. As we have seen, the plaintiff’s homestead in the premises is conferred by the statute, and has not been released nor discharged by the ante-nuptial contract. What the estate asked the Probate Court, in effect, to do, was to enforce the contract specifically against the plaintiff by enjoining her from asserting her legal right to the homestead. This was entirely beyond the jurisdiction of the Probate Court. Such contracts, both ante-nuptial and post-nuptial, are peculiarly subjects of equity jurisdiction and cognizance ; and in courts of equity are upheld and enforced, on the rules and limitations which govern that court in decreeing specific performance of contracts. Sullings *56 v. Richmond et al., supra. But if the Probate Court was clothed with full equity powers, the agreed case discloses no ground of relief for the estate. It is essential that the party, asking for the enforcement of the specific performance of a contract, should be able to aver and establish a performance of the contract on his part; especially, if his performance thereof forms the consideration for the covenants sought to be enforced. When the estate, therefore, seeks to have the plaintiff’s covenants in the contract specifically enforced against her, it takes upon itself the burden of showing that the intestate has performed the contract on his part. As we have said, the agreed case is silent on this point; but it is to be inferred from what is said, that he did not perform. Schouler, in his work on Domestic Relations, p. 271, speaking of the enforcement of this class of contracts, says : “ But where the performance is sought by the defaulting party, the contract cannot be enforced against the person injured through such default.” In Pierce v. Pierce, 9 Hun. 50 , the same doctrine is held, and applied. It is there said: “ When a man in contemplation of marriage, agrees to make a settlement on his wife, in consideration of which she agrees to relinquish her rights in his property at his decease, and fails to make the settlement, the widow is not barred of any right, which she might have asserted, if no such agreement had been executed.” Woodard v. Woodard, 5 Sneed, 49 ; Bliss v. Sheldon, 7 Barb. 152 , affirmed by the Court of Appeals, 8 N. Y. 31 ; Vance v. Vance, 21 Me. 364 ; Sullings et al. v. Sullings, 9 Allen, 234 , are to the same effect. The case of Bliss v. Sheldon is almost identical with the case at bar. Nor does it avail, that the widow has a claim against the estate for the unperformed covenants of the deceased husband. The purpose and object of the covenant is to make provision for her, and to place it beyond the contingency of hazard, or inability of the estate to respond in full. With that hazard added, it does not follow that she would have accepted the provisions of the contract, and entered into the covenant to waive the right which the law gives her to the estate of the deceased husband. All the cases hold, that it is of the essence of the contract, that the husband perform agreeably to his covenants, in order to hold the widow to the per *57 formance of her covenants after bis decease. It results, therefore, that the ante-nuptial contract set forth in the agreed case is not at law a bar, release, or estoppel, upon the plaintiff’s homestead in the estate ; that the Probate Court has no such equity jurisdiction as would enable it to enforce specifically against her, her covenant not to claim a homestead; and that if it had, the agreed case furnishes no ground for such enforcement. The judgment of the County Court is affirmed, and ordered to be cerified to the Probate Court.