APPEAL from the Circuit Court of White County; the Hon.
CHARLES T. RANDOLPH, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Floyd W. Purcell brought an ejectment action in the circuit court of White County against the children of one Charles N. Weasel, deceased, seeking to establish a one-third interest in an 80-acre tract of land. Trial was had before the court without a jury. A judgment was thereafter entered for defendants; and plaintiff appeals directly to this court, a freehold being involved.
The record discloses that on January 6, 1940, Charles N. Weasel married Lillian Winters. Each had children by a previous marriage. One of his children resented the marriage, and made life so unpleasant for them that they decided to separate. On May 11, 1940, they executed the following agreement:
"WHEREAS, on January 6, 1940 at Henderson, Kentucky the parties hereto were united in marriage;
WHEREAS, Lillian Weasel, herein designated as First Party, desires to live separate and apart from Charles Weasel, herein called Second Party, and to secure a property settlement;
WHEREAS, First Party is advised of her rights in the estate of her husband and is acquainted with the assets of his estate and still desires to enter into such property settlement;
WHEREAS, Second Party is willing to settle the property rights between himself and his said wife;
Now Therefore, in consideration of the payment of $150.00 by Second Party to First Party, receipt thereof being hereby acknowledged, it is agreed by the Parties:
(1) First Party hereby waives, relinquishes and quitclaims unto Second Party all her interest of every kind and character in and to the property of Second Party both real and personal, and hereby waives and releases all rights of inheritance, dower, homestead, and support which she may have in the estate of second party, acquired by reason of said marriage.
(2) Second party hereby waives, relinquishes and quitclaims unto First Party all interest of every kind and character in any property of First Party, both real and personal, and hereby waives and releases all rights of inheritance, dower, homestead or support which he may have acquired in the estate of First Party by reason of said marriage.
(3) It is the purpose and intent of the parties upon the execution of this agreement to have fully settled all present and future rights in the other's estate which may have accrued by reason of said marriage.
(4) First party stipulates that no children have been born to this marriage and none are expected at the date hereof."
A month or two after the agreement was signed the husband purchased a small house in another location, and the parties resumed marital relations. They lived together until his death some thirteen years later. In 1943 he conveyed the house to his wife, Lillian, and at all times supported her. After the husband's death the plaintiff secured a quitclaim deed from her for whatever interest she had in the 80-acre tract, paying her $20 consideration. He then instituted the present action, alleging that the agreement purported to relieve the husband of his obligation to support the wife and was therefore void, and that upon his death the widow acquired by inheritance a one-third interest in the real estate in question.
The plaintiff introduced no evidence in chief. The widow, Lillian Weasel, was called on behalf of the defendants. She testified, over objections by plaintiff, that in 1943, when her husband conveyed the house to her, he said "He would deed me that house and let the children have the farm." The witness testified further that when the plaintiff sought to buy her out she told him her husband "had everything fixed when he died." She signed the quitclaim deed at plaintiff's request. In rebuttal, the plaintiff testified ...