#### Mary J. Mann, Appellee, vs. Adam S. Mann et al. Appellants.

Opinion filed October 27, 1915

Rehearing denied Dec. 10, 1915.

1. Evidence—party defending as an heir is not incompetent to testify. Section 2 of the Evidence act declares parties to a suit incompetent to testify when the adverse party sues or defends as heir or devisee but not when the witness himself is suing or defending as heir or devisee.

2. Same—when widow is not competent under the third exception to section 2 of Evidence act. In a proceeding by the widow for assignment of dower, the fact that a witness defending as an heir testifies to the execution by the widow of an ante-nuptial contract, a sworn copy of the record of which is introduced in evidence, does not qualify the widow, under the third exception to section 2 of the Evidence act, to testify that she never entered into any ante-nuptial contract.

3. AnTE-nuptiae contracts—when burden is on wife to show she was not fully informed as to property. Where the wife seeks to repudiate an ante-nuptial contract after the husband’s death she must show that there was a marriage engagement between them when the contract was entered into, since otherwise there is no fiduciary relation; and if there is no such engagement shown and the contract merely states that the parties contemplate marriage with each other, the burden is on the wife, in case the provisions of the contract are disproportionate to the husband’s means, to show that she was'not fully informed of her intended husband’s circumstances.

Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholeield, Judge, presiding.

Stewart W. Kincaid, for appellants.

Frank C. Vansellar, and O’Hair & Rhoads, for appellee.

Mr. Justice Dunn

delivered the opinion of the court:

The appellee, the widow of Samuel C. Mann, who died November 12, 1913, began suit in the circuit court of Edgar county for the assignment of dower in the real estate which he owned during the marriage. A decree was ren*84dered in her favor, from which Adam S. Mann, his son, and Vivian Coalson, his grand-daughter, devisees under his will, have appealed.

The defense is based upon the following contract:

> “Samuel C. Mann and Mary J. Tucker.

> “Article of agreement made and entered into this 17th day of December, 1889, between Samuel C. Mann of the first part and Mary J. Tucker party of the second part:

> “Witnesseth: Whereas,.the said parties contemplate marriage with each other, they make the following agreement with reference to their property:

> "First—It is agreed that the said Mary J. Tucker, in the event of said marriage and also in the event of her surviving said Samuel C. Mann, hereby releases all right or claim, under any law, to any part of the estate of said Samuel C. Mann, either real or per- • sonal, and the said Samuel C. Mann on his part releases all legal right, title or claim to any part of the estate.of which the said Mary J. Tucker may own, either real or personal; and in the • event that the said Samuel C. Mann shall- survive the said Mary J. Tucker, he also relinquishes any and all claims upon her property, either real or personal.

> “Witness our hands and seals this the 17th day of December,

> l889‘ . (Seal)

> (Seal)

> “It is further agreed by the said Samuel C. Mann that if he should depart this life before the said Mary J. Tucker, then the said Mary J. Tucker shall have the right to occupy, as her home, the premises where the said Samuel C. Mann now lives, as long as she remains his widow.

> S. C. Mann, (Seal) Mary J. Tucker. (Seal)

> “Filed and recorded Feb. 5, 1891. TT - y

> TT - H. E. Rives, Recorder.”

This contract was not produced upon the hearing but a sworn copy of the record of it' in the recorder’s office of Edgar county was introduced in evidence. Adam S. Mann testified that he saw the original in his father’s possession in 1912; that he had seen the appellee write and was acquainted with her handwriting and had seen his father write and was acquainted with.his handwriting, and that the signatures to the instrument were those of his father and the appellee. His wife testified to the same effect, and both *85testified that the 'recorded instrument was a copy of that which they had seen in their father’s possession. The instrument could not be found after the death of Samuel C. Mann. Objection was made to the competency of these witnesses on the ground that Adam S. Mann was an heir of Samuel C. Mann and was defending as such heir. Parties to a suit are declared' incompetent to testify, by section 2 of the act in regard to evidence and depositions, only when the adverse party sues or defends as heir or devisee, and not where such party himself sues or defends in that capacity.

Mary J. Mann testified, in rebuttal, that she had never entered into any ante-nuptial contract with her husband; that he never said anything to her about it. She was objected to as an incompetent witness, and the objection should have been sustained. The adverse parties were defending as devisees of their deceased father and grandfather, Samuel C. Mann. It is contended that she was a competent witness under the third exception to section 2 of the act in regard to evidence and depositions, which provides that where the adverse party suing or defending in one of the representative capacities mentioned in that section, or any person having a direct interest in the event of the suit, shall testify in behalf of such party so suing or defending to any conversation or transaction with the opposite party, then such opposite party shall also be permitted to testify as to the same conversation or transaction. This exception is not applicable. The testimony of Adam S. Mann and his wife was not to any conversation or transaction with the appellee, and her testimony was not in regard to the same transaction about which they testified. This was all the evidence introduced in regard to the execution of the contract, and it was sufficient prima facie to show its execution.

Counsel for appellee insist that the provisions of the contract are disproportionate to the means of her husband, *86and. that the burden of proof was upon the appellants to show that she was fairly advised as to her husband’s property at the time the contract was made. There is no evidence that appellee knew the nature, character and extent of her intended husband’s property at the time the contract was executed, and if the burden rests upon the appellants of showing that she was informed in regard to these matters it has not been sustained. The relationship between the parties to a marriage engagement is a confidential and fiduciary one, requiring just and fair dealing. When an ante-nuptial contract is entered into between such persons the provisions of which are disproportionate to the husband’s means, it will be presumed that the intended wife was not fully informed as to the value and extent of her husband’s property, and unless this is disproved the contract will not be enforced against her. (Hessick v. Hessick, 169 Ill. 486; Warner v. Warner, 235 id. 448.) It has been held, however, that the burden is upon the wife seeking to repudiate an ante-nuptial contract to show that there was an existing marriage engagement at the time the contract was entered into, since otherwise no fiduciary relation is established. (Martin v. Collison, 266 Ill. 172.) In this case no evidence whatever was introduced in regard to the circumstances under which the contract was executed. The marriage took place on December 26, 1889,—nine days after the date of the instrument. The instrument itself does not recite a marriage engagement, or even that the parties are about to enter into a contract of marriage, as in the case of Martin v. Collison, supra. It simply states that the parties contemplate marriage with each other. Under the doctrine heretofore announced by this court the burden was upon the appellee to show that she was not fully informed as to her intended husband’s circumstances.

The execution of the instrument having been proved and there being no evidence that defendant had not full information as to her husband’s means, the contract should *87not have been disregarded, and the decree rendered was erroneous. It will be reversed and the cause will be remanded to the circuit court, with directions to dismiss the bill.

Reversed and remanded, with directions.