Opinion
May 8, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert G. Rogers, John J. Lefferdink, Lamar, for Estate of W. C. Baggett.
Johnson, McLachlan & Tempel, Harlan Johnson, Lamar, for appellants James C. Baggett and Donald L. Baggett.
Garth L. Nieschburg, Lamar, for appellee.
SMITH, Judge.
By means of this appeal, appellants seek to overturn an order of the district court which allowed appellee, Bessie M. Baggett, to claim her widow's allowance against the estate of her deceased husband. The court found that an antenuptial agreement which had been entered into between appellee and her husband did not specifically deal with the widow's allowance and concluded therefore that the antenuptial agreement did not waive appellee's right to a widow's allowance.
The antenuptial agreement reads in pertinent part as follows:
'NOW THIS INDENTURE WITNESSETH, that each of them, the said William C. Baggett and Bessie M. Klinge, hereby declares it to be his and her desire that during their marriage each of them shall be and continue completely independent of the other as regards the enjoyment and disposal of all property, whether owned by either of them at the commencement of the marriage or coming to them or either of them during the marriage.
And each of them hereby agrees with the other, in view and consideration of said proposed marriage, that so far as is legally possible by their private act and agreement, all property belonging to either of them during the marriage, shall be and be enjoyed by him or her, and be subject to his or her disposition as his or her separate property in the same manner as if the said proposed marriage had never been celebrated.'
It is settled that a wife may waive a widow's allowance by contract with her husband. Brimble v. Sickler, 83 Colo. 494, 266 P. 497; Vincent v. Martin, 91 Colo. 106, 11 P.2d 1089. Such a waiver, however, must be in terms that do not admit of a doubt and clearly and definitely indicate a purpose to waive a specific statutory right. McLaughlin v. Craig, 117 Colo. 67, 184 P.2d 130. Williams v. Pollard, 101 Colo. 262, 72 P.2d 476; Remington v. Remington, 72 Colo. 132, 209 P. 802. For there to be an express waiver of the widow's allowance, it is not necessary to use the specific words, 'widow's allowance,' but it is necessary that a term be used which clearly comprehends the scope of these words and admits of no doubt. Brimble v. Sickler, Supra; Bradley v. Bradley, 106 Colo. 500, 106 P.2d 1063. There was no such wording in this agreement.
Order affirmed.
COYTE and ENOCH, JJ., concur.