97 F. 367 | 8th Cir. | 1899
This is a suit by a divorced wife to recover from the devisees under the will of her former husband one-half of the property of which he died seised. Under the statutes of Colorado, one-half of the real and personal property of a deceased husband and father descends to his widow, and the other half to his surviving children. The husband may not take away from his wife her share of his estate by a will, nor can she deprive herself of her right to claim this share by consenting before the death of her husband to a will which bequeaths it elsewhere. Mills’ Ann. St. Colo. §§ 1524, 3011. The appellant, Iilyon B. Daniels, exhibited her hill in equity in this case to set aside her divorce, for fraud, and to recover one-half of the estate which her deceased husband possessed when he died. It was met by an answer which denied the fraud in the procurement of the divorce, by a plea of an agreement of separation by which she covenanted never to claim any interest in her husband’s estate, and by a plea of the statute of limitations. A general replication was filed to the answer and to the pleas, and upon the final hearing of the case the circuit court held that the agreement of separation and the decree of divorce constituted good defenses to the suit, and dismissed the bill. This decree is challenged by the appeal, and we will first consider the objections of the appellant to the sufficiency of the defense based upon the agreement of separation.
It is said that this contract constitutes no defense to this suit, because the burden was upon the appellees to show, by evidence outside of the agreement itself, that its terms were equitable, just, and fair to the appellant, in view of the value of the property of her husband, and of all the surrounding circumstances when the contract was made, and that they neither pleaded nor proved any facts which sustained this burden. To this contention there are two answers. They are that no such burden rested upon the appellees, and that by the course of her pleading the appellant conceded this to be the law. The argument of counsel for appellant in support of their proposition is that husband and wife occupy a fiduciary relation to each, other, and that contracts between them are consequently presumptively void until they are proved to be valid. If all contracts between those in confidential relations to each other were presumptively fraudulent and void, the conclusion might be justified, but they are not, and hence the argument fails. Borne contracts between parties in fiduciary relations to each other are valid, and some are voidable or void, and some contracts between strangers are valid, and some are void; so that no definite conclusion can be drawn as to the validity or invalidity of a contract from the fact that the parties to it occupied a fiduciary relation to each other. It will not do to say that all contracts between husbands and wives, between fathers and daughters, between principals and agents, and between others in similar relations, are ineffectual until proved aliunde to be just and fair, because the effect of such a rule would be to pra.ctically disable parties occupying such relations from making contracts with each other. Agreements between parties in these relations are either presumptively valid or pre
We have not failed to carefully peruse and consider, before reaching this conclusion, the authorities which have been cited by coun
The contract of separation, therefore, like agreements between strangers, was valid and binding, unless it was illegal, immoral, or violative of public policy. There is certainly nothing illegal in an agreement for a husband and wife to live separate and to divide their property. There is no moral turpitude in such a contract, nor can it be said at this day to be otherwise than in accord with the public policy of England and the United States. Under the laws of the English-speaking nations, marriage is a civil contract, and not a sacrament. Many reasons suggést themselves to the thoughtful mind why a wise and enlightened public policy should encourage and enforce voluntary agreements of separation between husbands and wives whose wranglings, quarrels, and domestic infelicities have rendered their homes places of torment to themselves, and of discontent and misery for their children. We refrain from reciting these reasons here, because the public policy of a. nation or of a state is not to be sought in the opinions of individual judges, or through a consideration of the better reasons, but must be ascertained by a comprehensive view of its laws and judicial decisions relative to the subject-matter in question. U. S. v. Trans-Missouri Freight Ass’n, 19 U. S. App. 36, 54, 7 C. C. A. 15, 23, and 58 Fed. 58, 67; Vidal v. Girard’s Ex’r, 2 How. 126, 197; Swann v. Swann (C. C.) 21 Fed. 299. When the legislation of the nations is examined, we discover no prohibition of these agreements in England or in the United States, but express permission and authority granted to married women by the statutes and decisions of Colorado to make any contracts they choose with their husbands, or with -any other
“Contracts of this untare, for the separate maintenance of the wife throvah the intervention oí a trustee, have received the sanction of the courts in England and in this country for so long a period oí time that the law on the subject must be considered as settled.” Carson v. Murray, 3 Paige, 483, 501; Wells v. Stout, 9 Cal. 480, 493; Walker v. Beal, 3 Cliff. 155, 166, Fed. Cas. No. 17,065; Hutton v. Hutton’s Adm’r, 3 Pa. St. 100; Dillinger’s Appeal, 35 Pa. St. 357, 362; Hitner’s Appeal, 54 Pa. St. 110, 115; Com. v. Richards, 131 Pa. St. 209, 218, 18 Atl. 1007; In re Scott’s Estate, 147 Pa. St. 102, 110, 23 Atl. 214; Thomas v. Brown, 10 Ohio St. 217, 250; Bettle v. Wilson, 14 Ohio St. 257, 269; Garver v. Miller, 16 Ohio St. 528, 531; Doyle v. Doyle, 50 Ohio St. 330, 34 N. E. 166; Dutton v. Dutton, 30 Ind. 452; Loud v. Loud, 4 Bush, 453, 461; Robertson v. Robertson, 25 Iowa, 350; Going v. Orns, 8 Kan. 87.
In view of the public policy of the nation upon this subject, evidenced by those decisions, and of the policy of the state oí Colorado, declared by the acts of its legislature and the decisions of its courts to which we have adverted, there is no escape from the conclusion that an agreement of separation between a husband and wife, whereby lie provides for her separate maintenance, and she covenants to release ail her claims upon his estate, is lawful, and presumptively valid, without plea or proof of its equity, reasonableness, or fairness to the wife. The plea of the naked agreement as a bar to this suit was therefore good, without any avennenfc of the facts and rirenmslances which made it just and equitable to the appellant when it was executed.
Moreover, the appellant conceded this to be the law by Hie course of her pleading, hie did not allege that there was any fraud in the procuring, or any unreasonableness in the terms of, the agreement of separation, in her bill. Sor did she pray for its cancellation and
The suggestion in the brief of the appellant and in the assignment of errors that the court below improperly overruled an exception to this plea as impertinent, and erroneously refused to permit the appellant to file an amended bill, has not escaped our attention. There was certainly nothing impertinent in the plea, and, as counsel for the appellant has not deemed the ruling upon the proposed amendment to the bill of sufficient importance to point out the pages of the record on which the amended bill and the order concerning it may be found, we assume, in accordance with our usual practice, that the question they suggest here is not of such gravity as to warrant a search for it through the 1,398 pages of the printed transcript of the record in this case.
We come, therefore, to the consideration of the merits of the case, — to the consideration of a contract of a character in accord with the public policy of the state and the nation, and clothed with the presumptions of validity and fairness, under the evidence presented at the final hearing. Counsel for the appellant zealously and persuasively argue that the facts established by this evidence show that this agreement was void because it contained on its face stipu: lations in contravention of public policy, because it was procured by the fraud and misrepresentations of the husband, and because it was inequitable and unfair to the appellant. It will be conducive to clearness and brevity in the discussion of the reasons which they urge in support of this argument to briefly state here the material facts which the evidence discloses. They are these: In July, 1882, William B. Daniels was a prosperous merchant, about 50 years of age, residing in the city of Denver, and was the owner of property of the value of about $700,000, while the appellant was
They say that the contract is void, and constitutes no defense to this suit, because it was not made through the intervention of a trustee. But the only reason why a trustee was ever essential to such agreements was that under the common law the wife was disabled from contracting directly with her husband, and from bringing suits in her own name. Nevertheless, even under the common law, an agreement of separation without the intervention of a trustee was valid and enforceable in equity; and under the statutes of Colorado, which empower the wife to make any contract with any person, since the reason of the rule has entirely ceased, the rule no longer prevails. Under the statutes -of Colorado a contract of separation between husband and wife without the intervention of a trustee is valid both at law and in equity, and under the common law such an agreement is enforceable in equity. Mills’ Ann. St. Colo. § 3021; Wells v. Caywood, 3 Colo. 487, 496; Scott v. Mills, 7 Colo. App. 155, 157, 42 Pac. 1021; Jones v. Clifton, 101 U. S. 225, 229; Hutton v. Hutton’s Adm’r, 3 Pa. St. 100, 104; Com. v. Richards, 131 Pa. St. 209, 218, 18 Atl. 1007; In re Scott’s Estate, 147 Pa. St. 102, 110, 23 Atl. 214; Dutton v. Dutton, 30 Ind. 452, 455; Robertson v. Robertson, 25 Iowa, 350, 354; Going v. Orns, 8 Kan. 85.
It is contended that the contract was abrogated because there was subsequent cohabitation between the parties to it for a few weeks after its execution. But it is not subsequent cohabitation alone which avoids such agreements, but the intentional renunciation of them, and the reconciliation which the resumption of marital relations sometimes evidences. So far as subsequent cohabitation establishes such an intention, and so far only, doe3 it have
“It is insisted Hie obligation of the trust was discharged when the wife returned to her husband’s house, but this is a mistaken view of the effect of the instrument. It was the intention of the parties that the arrangement should be permanent, and, to accomplish that purpose, the agreement was framed so that the wife should enjoy her separate estate during life, although she should subsequently become reconciled to her husband and cohabit with him. We can see no valid objection to such a provision, and it is certainly supported by authority [citing Wilson v. Mushett, 3 Barn. & Adol. 743; Bell, Husb. & Wife, 525-541], The husband had a right to make a settlement upon his wife without any view to separation, and the insertion of this provision shows that he. did not intend the settlement to cease on the return of the wife to cohabitation. There is no good reason why effect should not be given to the intention of the parties on the subject. If, on grounds of public* policy, it is desirable that the parties should be reconciled, whatever tends to promote such a. result will receive the favorable consideration of a court of equity.”
In Randle v. Gould, 92 E. C. L. 456, a stipulation in an agreement of separation that the contract should not be invalidated unless the parties should subsequently make and perform a written agreement to live together as man and wife for a month was sustained. To the same effect are Hitner’s Appeal, 54 Pa. St. 110, 116;
Another position taken on behalf of the appellant is that the com tract is void because it contravenes the public policy of the state of Colorado, evidenced by sections 3010, 3011, Mills’ Ann. St. Those sections provide that a married woman may not bequeath away from her husband more than one-half of her property without his consent in writing, and that the husband may not by will deprive his wife of over half of his property unless she accepts the condition of the will after his death. But since these restrictions are expressly limited to dispositions by will, and as the husband is left entirely free while he lives to sell and convey all his property, real and personal, without the joinder or consent of his wife (Hanna v. Palmer, 6 Colo. 160), and since the wife is expressly empowered to make any contract she chooses while she is living, we fail to perceive any indication in these provisions of a public policy adverse to this contract, by which living parties disposed of property, and fixed their rights to it, not by will, but by convention.
It is strenuously argued that the agreement is nugatory because it is a release or acquittance of a mere expectancy, — of the mere possible interest which the wife might have as. a distributee of her husband’s estate. It is true that a mere possibility, such as the expectancy of an heir, is not transferred or conveyed by a mere release or quitclaim, because such a release conveys interests in existence only, and a presumptive heir has no vested or existing in terest in the property of his ancestor before his decease. Bayler v. Com., 40 Pa. St. 42; Dart v. Dart, 7 Conn. 254. It is equally well settled, however, that a contract or covenant with the ancestor, made for a valuable consideration, by a presumptive heir or distributee, to the effect that he will not claim or receive any share or interest in the property of which the ancestor may die seised, and that the latter’s estate shall descend and be distributed to his other heirs, inures to the benefit of the latter, and constitutes a complete estoppel against any claim of the covenantor to the property at law, and a valid agreement to renounce it, enforceable in equity. The appellant made such a covenant, and is thereby estopped from asserting any claim to any share in the property left by her former husband. Thus, in Hobson v. Trevor, 2 P. Wms. 191, Lord Chancellor Macclesfield compelled the performance of an agreement in marriage articles to convey to a husband a third part of what should come to the father of the wife oñ the death of his father; and in Beckley v. Newland, Id. 182, the same chancellor' enforced a contract between the husbands of two presumptive heirs to divide equally what should be left to them. In re Garcelon’s Estate, 104 Cal. 570, 585, 38 Pac. 414; Havens v. Thompson, 26 N. J. Eq. 383, 386; Brands v. De Witt, 44 N. J. Eq. 545, 548, 10 Atl. 181, and 14 Atl. 894; Kershaw v. Ker
The suggestion is thrown out that the contract was void because the evidence does not disclose any good cause for the separation, and because it does not show that the appellant knew the value of her husband’s property when she made the agreement. The record contains no evidence upon these subjects, and these objections are therefore laid at rest by the conclusion reached in the earlier part of this opinion, that the presumption is that the contract is valid and not void. In accordance with this conclusion the legal presumption is, and it must prevail in the absence of countervailing proof, that the cause for the contract and for the separation was a good one, and that the appellant’s knowledge of all the material facts which conditioned the negotiations and the agreement was ample. Besides, since the parties had the legal right to enter into this agreement, their cause or reason for so doing was for their own consideration and decision exclusively; and, as they deemed it sufficient, the question of its character or sufficiency is not open for the consideration of the courts, and the contract would stand even if in their opinion the cause for it was inadequate, or there was no cause for it.
A forcible and persuasive argument for the disregard of this agreement has been presented on the ground that it was procured by the fraud and misrepresentation of Daniels, and that it was unjust and unfair to the appellant. The facts upon which reliance was placed to establish the fraud are that Daniels repeatedly wrote to his wife, while the negotiations for the contract were in progress, that in a short time after it was signed they would again come together, and live as husband and wife; that the agreement shows on its face that it was made in contemplation of the fulfillment of this promise; that he brought his own lawyer to the conference with his wife in December; that, when the lawyer announced that the differences between them were so wide that he could not act for the wife while he was retained by the husband, the latter released him; that Mr. Wells thereupon acted for the appellant; and
The various objections of the appellant to the defense based upon the agreement of separation have now been considered, and the resuit is that the contract was valid in its inception, and that its execution by Daniels constitutes a completé bar to the relief sought by tlie appellant in this suit. As we review the entire record, and part with this case, the righteousness of this result is clear. The appellant made her covenant that she never would claim anything from the estate of her husband, and that she would support herself; and for it she secured §75,000, and freedom from her obliga
The conclusion at which we have arrived upon a consideration of the agreement of separation renders it unnecessary for us to discuss the defenses founded on the statute of limitations and the decree of divorce.
At the December, 1898, term of this court, an order was made that the appellant should print such additional portions of the record in this case as the appellees should designate, and that, if the court should determine that the portions so designated by the appellees were not necessary for the consideration of the errors assigned, the cost of such printing should be taxed against the appellees. Under that order the appellees designated certain portions of the record for printing, and among others the entire certified record in the divorce proceedings of Minnie E. Warren v. Lyman E. Warren, which was introduced in evidence by the appellees. This portion of the record was not necessary for the consideration of the errors assigned by the appellant, and the cost of its printing must be paid by the appellees. The decree below is affirmed, with costs, but the appellant may recover of the appellees the cost of printing the certified copy of the record in Warren v. Warren, and the clerk will tax the same accordingly.