Fixico v. Fnaco

Fixico v. Fnaco
1940 OK 118
100 P.2d 260
186 Okla. 656
Case Number: 29428
Decided: 03/12/1940
Supreme Court of Oklahoma

FIXICO
v.
FIXICO et al.

Syllabus

¶0 INSANE PERSONS--incompetent's antenuptial contract void and not validated by acquiescence of guardian or court whereby necessaries are furnished incompetent's minor son's family.
An antenuptial contract entered into by an incompetent person is void. Acquiescence therein by guardian or court whereby necessaries out of incompetent's estate are furnished incompetent's minor son's family, including plaintiff, does not validate such a contract.

Appeal from District Court, Okmulgee County; S. L. O'Bannon, Judge.

Action by Annie Fixico against Katie Fixico, nee Daniels, an incompetent, and her guardian, John T. Cole. Judgment for defendants, and plaintiff appeals. Affirmed.

J. Harry Swan, of Okmulgee, for plaintiff in error.
E. J. Gilder and Q. D. Gibbs, both of Okmulgee, for defendants in error.

RILEY, J.

¶1 This is an appeal from a judgment sustaining a demurrer to plaintiff's petition and dismissing the action. Appellant contends the action sounds in tort, but it approaches breach of contract.

¶2 Defendant is an incompetent Indian. It is alleged that she induced plaintiff to marry her minor son under promise of provision of a home and sustenance, and that these were furnished with acquiescence of defendant's guardian and the county court. Defendant's son died in 1935; three years thereafter it is alleged defendant rendered plaintiff's condition intolerable by "breaking said contract," making efforts to obtain possession of the home of plaintiff, and sought to oust plaintiff and her two children from the home, the use of which defendant had furnished, and as a means to this end "had the water, lights, and gas cut off."

¶3 Section 9404, O. S. 1931, sec. 24, title 15, Okla. Stats. Anno., inhibits a contract, designation of a power, and waiver of a right by an incompetent person. Therefore, any contemplated contract attempted to be made as herein alleged vested in plaintiff nothing, nor did acquiescence of guardian or court in providing living expense or home for plaintiff bind the incompetent defendant.

¶4 Judgment affirmed.