Munsell v. Munsell's Estate

Waston, C. J.

In Smith and Nye, Executors v. Wingate W. Munsell, a case in chancery based upon the antenuptial con *105 tract in question and brought in aid of the probate court in the settlement and distribution of the estate of Hannah Munsell, reported in 94 Vt. 201 , 110 Atl. 12 , the contract was held to be “in full force and of binding effect upon the” surviving husband, the appellant in the present action, and he was “ordered and decreed to keep the same according to its terms. ’ ’

[1] By the terms of the contract it was not only covenanted that, in the event of said marriage, each of the parties should have, hold, and maintain his or her separate control, ownership, and disposition of the property owned by him or her and the avails thereof the same thereafter as if said marriage was not had between them, but the power was expressly reserved to each to make such disposition of his or her property, by gift or will, during his or her lifetime, as he or she saw fit. This power was executed by the wife in her lifetime in one of the ways thus authorized, namely, by will. The case is therefore within the general rule laid down by Mr. Justice Story, “that all antenuptial agreements for securing to a wife separate property, will, unless the contrary is stipulated or implied, give her in equity the full power of disposing of the same, whether real or personal, by any suitable act or instrument in her lifetime, or by her last will, in the same manner, and to the same extent, as if she were a feme sole.” 2 Story Eq. Jur. § 1390. And that where “a power is reserved by a settlement, to enable the wife after marriage to dispose of her separate property, either real or personal, it may be executed by her in the very manner provided for, whether it be by deed or other writing, or by a will or appointment. And courts of equity will,-in all cases, enforce against heirs, devisees, and trustees, as well as against the husband and his representatives, the rights of the donee or appointee of the wife.” 2 Story Eq. Jur. § 1388. A very important case on the doctrine stated in these two sections by Mr. Story, is Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523.

[2] Nothing more need be said to show that by the decree rendered in the case in chancery in aid of the probate court, as mentioned in the first paragraph of this opinion, the contentions now made by the surviving husband, that the contract does not debar him from waiving the will of his deceased wife and taking under the statute such share of her estate, she leaving no issue, as surviving husbands may take in like cases of intestate estates, or in any event the amount so given by statute at the time of her *106 decease in excess 'of what was given at the time the contract was made, were adjudicated, and not now open for further discussion. To be sure, we there said that the question as to such excess was not raised below and so not before us; but this fell short of saying that it was not within the scope of the decree and concluded by it.

' Decree affirmed with costs. Let it be certified to the probate court.