Opinion
November Term, 1900.
Edwin Hicks, for the appellant.
William S. Moore, for the respondents.
The ante-nuptial agreement rested in parol and its only consideration on the part of the plaintiff was her marriage with Mr. Hunt, and that is urged to be sufficient part performance to remove the bar of the Statute of Frauds. From an early period the authorities in this State have been unvaryingly the other way. ( Reade v. Livingston, 3 Johns. Ch. 481; Dygert v. Remerschnider, 32 N.Y. 629; Brown v. Conger, 8 Hun, 625; Ennis v. Ennis, 48 id. 11, 14; Lamb v. Lamb, 18 App. Div. 250; Whyte v. Denike, 53 id. 320.)
In Brown v. Conger (8 Hun, 625) the action was by the widow to recover one-third of her husband's estate based upon an oral ante-nuptial contract, and the court in considering this subject, said (at p. 627): "It is urged by the appellant's counsel that the marriage in pursuance of the ante-nuptial agreement is such a part performance as that a court of equity will enforce the parol contract notwithstanding the statute of frauds. The counsel refers to no case which supports this proposition. Indeed, the cases so far as I have examined them, are all the other way."
That seems to accord with the doctrine generally recognized. (Tiff. Pers. Dom. Rel. 160; Beach Mod. Eq. Juris. § 622; Schouler's Dom. Rel. [5th ed.] § 179; Clark Cont. 102; Pom. Cont. [Specific Performance] [2d ed.] § 111; 8 Am. Eng. Ency. of Law [1st ed.], 685.) The rule is thus stated in Tiffany on Persons and Domestic Relations (at p. 160, supra): "The marriage of the parties is not such part performance as will, even in equity, take the agreement out of the operation of the statute." Pomeroy, in treating of specific performance in his work on Contracts, gives the rule in a sentence and supplements it with a terse statement of the reason for it. He says (at §§ 111, 113): "When a verbal contract is made in relation to or upon the consideration of marriage, the marriage alone is not a part performance upon which to decree a specific execution. This rule, which is firmly established, is based upon the express language of the statute. A promise made in anticipation of a marriage, followed by the marriage, is the exact case contemplated by the statute. It is plain that the marriage adds nothing to the very circumstances described by the statutory provision which makes a writing essential; in fact, until the marriage takes place, there is no binding agreement independent of the statute, so that the marriage itself is a necessary part of every agreement made upon consideration of it, which the Legislature has said must be in writing." The fact that the present action is in equity does not relieve the appellant from this rule. A valid contract must be the foundation of the right to recover whatever may be the form of the action. ( Dung v. Parker, 52 N.Y. 494.)
The proof tends to establish that while they were cohabiting together as husband and wife, Mr. Hunt did execute his will giving to her substantially all of his property. The document was destroyed and its contents depended upon oral testimony. There was no suggestion, however, that it contained any recognition of the ante-nuptial agreement or any allusion to it. This was not a confirmation of that agreement sufficient to prevent the operation of the Statute of Frauds. To surmount the difficulty imposed by that statute by a subsequent ratification or adoption of the parol agreement the contract must have been explicitly recited in the will, leaving nothing for extraneous proof. ( Cooley v. Lobdell, 153 N.Y. 596, 600; Mentz v. Newwitter, 122 id. 491.)
In the latter case the court says (at p. 497): "And the whole current of authority in this State is that the memorandum must contain substantially the whole agreement, and all its material terms and conditions, so that one reading it can understand from it what the agreement is."
We have carefully considered the many authorities cited in the brief of the appellant's counsel, but they do not contravene the rule which seems to be so well settled. While a valid ante-nuptial agreement is enforced wherever possible, no case has been presented to us obnoxious to the Statute of Frauds or mitigating its force where the only performance of the oral contract inducing the marriage was the marriage itself in which specific performance has been decreed.
The judgment is affirmed, with costs to the respondents.
All concurred.
Judgment affirmed, with costs.