Epitomized Opinion

First Publication of this Opinion

Original action for specific performance and equitable relief in the Common Pleas of Highland county, wherein Grace McGee was plaintiff and Anthony Sigmund was defendant. The petition alleged that Anthony and Elizabeth, husband and wife, entered into a written agreement which provided for an immediate separation and a mutual release of all rights of support, dower, inheritance, distribution, allowance and of all other rights or claims whatsoever, whether now owned or hereafter to be acquired. 1 Thereafter Elizabeth died, intestate, without children, and owning real estate. Plaintiff was the sole heir and next of kin of Elizabeth and, except for any right of Anthony, would inherit all of the estate of Elizabeth. Defendant demurred to the petition. The demurrer was sustained by the trial court and that decision was affirmed by the Court of Appeals. Plaintiff prosecuted error. Held:

The terms of the contract are sufficiently comprehensive to exclude- the husband from inheriting the real estate if at the time of the execution of the contract he had -any right thereto in being whch could be the subject matter of a release. 7999 GC. does not purport to give to husband or wife any greater power to contract with each other than persons other than husband and wife possess.

By 8574 GC. the husband of a deceased wife, in the absence of children of the deceased wife, is the heir to the non-ancestral real estate of the deceased wife to the exclusion of the legal representatives of the brothers and sisters. By Needles v. Needles, 7 OS. 482, a mere expectation or chance of succession cannot be released for the reason that a release m'ust be founded on a right in being either vested or contingent. Elizabeth’s estate must pass by either devise or descent and the operation of the statute in this case cannot be defeated by this executory contract.