The record-union., 1891-02-16

IN order to defeat its probate, need only
show that she was married TO the testator
subsequent to it's execution. The burden
is then cast upon the proponent to show
the existence of one of the conditions
which except it from this rule. If the
wife is not mentioned in the will, he must
show that provision has been made for
her" by marriage contract" And, in
order to emphasize the rule that the in
strument itself is the only mode of proof,
the section further declares: "And no
other evidence to rebut the presumption
OF revocation must be received.o
The plain meaning of this clause is that,
unless the instrument shows upon its
face that it is a marriage contract"
within the meaning of the section,
made for the wife, and that such provi-
sion was intended to take the place of
testamentary provision Tor her, the will
is revoked. The wife is not called upon
to Introduce any further proof, and the
proponent is limited in his proof to the
marriage contract itself Nor can the
court receive any evidence for the pur-
pose of showing the intention of the
parties to the instrument, or their rela-
tive condions OF wealth at the time it was
executed, or the effect which will result
from its enforcement. If the instrument
is marriage contract" and purports
to make provision" for the wife, the
CouTt CiLHOt Inquire lnIO the character or
extent or reaSonableneSS of such ''provis-
ion'' any more than it can in other con-
tracts between parties who are Sui ju?7s
Ii the parties are themselves satisfied
with the "provision," it is not for the
court to substitute its judgment for theirs
as to its sufficiency. So long as the eXecu-
ton of the contract is not impeached, it is
as binding upon the parties as would be
any other contract.
IL the instrument does not on its face
purport to make provision for the wife in
lieu OF testamentary provision, the court
cannot receive evidence of any character
for the purpose of showing that such was
the intention of the parties. The provis-
ion OF the statute forbidding any other
evidence than the contract itself is pecu-
liarly appropriate to all post-nuptual
agreements. As the husband and wife
can enter into any engagement or tran
saction with each other respecting prop
erty which either might if unmarried &C.
Z. Sec. l5S), such an agreement made by
them ought not to receive a construction
that does not appear upon its face to have
been its object, or which will operate a
different result from that which is fairly
deduclble from its terms. If the husband
and wife have, each of them, separate
property. and they choose to deal with
each other respecting it. either by way Of
exchange or purchase and sale, such deal
asserting some right which does not
appear from the terms of the instrument
to have been in their minds. If the hus-
band during the marriage makes to his
wife conveyance of certain property,
such conveyance ought to be regarded as
gift rather than provision" for her
which would prevent his ante-nuptial
will from being revoked by his marriage.
The instrument executed between
Corker and his wife partakes more of the
nature of deed of separation than of a
marriage contract. 1t does not purport
to make any provision for the wife,
nor is there anything in it's terms that in
dicates that either of the parties had in
mind the subject Of a will, or that the in
strument was executed in lieu of making
teStamentary provision for her. 1t refers
to another instrument executed to her by
her husband in consideration of which
she releases him from certain marital
obligations. The instrument itself does
not contain any of the elements of
marriage contract"
AS soon as this instrument was pre-
Sented to the court, and the court saw
from an inspection of it that it was not
marriage contract, its power under the
proceedings before it was limited to de-
nying probate to the will. After it had
been shown that there was no marriage
contract in which provision had been
made for the wife, the court was only re-
qulred to determine the person who had
the right to administer upon the estate.
| Whatever rights of property passed UNI
der the contract, or whether it could be
enforced, or whether the widow has anv
right in the estate of her deceased buS.
band, are questions that may arise when
distribution of the estate shall be sought
| but could not then be Investigated, Sit
| ting at that time merely as a court of pro-
bate, 1t had no jurisdiction to INQUIRE
into the sufficiency of the consideration
for which the deed to the wife was
executed, or for the release then executed
| by her to her husband, or whether the
property described in the deed to her was
at the time of its execution her separate
/ property, or whether the contract itself
was fair or reasonable. Its findings and
determinations upon these subjects We're
without authority, and binding upon no
one. These questions could be presented
and determined only in a tribunal having
jurisdiction to inquire into them. and
where the parties who would be affected
thereby would have an opportunity to be
| heard.
| The court seems to have reached this
conclusion, since in its Judgment it mere
~ declared that the will was revoked,
and, therefore, denied it probate.
Whether the evidence before the court
was sufficient to justify it's findings upon
the other propositions is immaterial. IF
there was sufficient evidence to justify it's
fndIng of the ultimate fact, that no pro-
vision had been made for the wife by any
marriage contract, that decision or find
ing is not impaired by the fact that there
was not sufficient evidence to Justify the
immaterial findings which it made: and
its order denying new trial was correct.
and should be affirmed.
| And it is so ordered.
HARRISON, J.
GARoUTTE, j.,
PATERSON, j.