106 Neb. 461 | Neb. | 1921
This action was begun by the appellant, Reuben Lauder-back, widower of Edith Lauderback, to determine the validity of a postnuptial contract between him and his late wife, and to have set over to him the specific articles of personalty and allowances which the statute awards
The parts of the contract that are material to the determination of this case are: “That the parties hereto are man and wife. That disagreements have arisen between them and they each have decided their future welfare and happiness will be better conserved if they live separate and apart and maintain each himself and herself. In order to make a fair, equitable and agreebale division of their property, both real and personal, the said Reuben Lauderback is to pay to said Edith Lauderback, his wife, the sum of $4,000. * * * Said Edith Lauderback to have all household goods, groceries, dishes, flour and other household utensils and supplies now in the home of the parties hereto. * * * Said Edith Lauderback being ill and under the doctor’s care, and having removed from where the parties hereto have resided to the home of her sister, Mrs. James Beans, all of said property is to be removed from said premises herein described at her convenience and under her directions and ’at such times as she wishes to remove the same. * * * In consideration of the foregoing the parties hereto agree that from now henceforth and for evermore they will live separate and apart from the other, keep and maintain each themselves, make no claim or demand upon each other on account of the marriage relation and each hereby waives, released and quitclaims each to the other all right of inheritance and agree to claim nothing from the property each may now have or hereafter acquire, purchase or own in the future. And if either of the parties in the future apply for absolute divorce that this contract and this settlement shall be considered as full payment and settlement of all alimony, court costs or attorney fees that either might ask from the other in a divorce suit.” The contract was signed and duly acknowledged.
Elliott, in his work on Contracts, vol. 1, sec. 414, says: “It is obvious that, notwithstanding the husband and wife are .given the power to contract with each other they cannot enter into an agreement which contravenes the public policy of the state where it is executed. Thus contracts between husband and wife looking to a future separation or to assist in the procurement of a divorce are invalid. However, when the parties at the time of or after .the separation enter into a separation agreement fair as to all parties, it is, with a few exceptions, held valid and enforceable, so far as property rights therein contracted for are concerned.”
Judge Field, in the case of Wells v. Stout, 9 Cal. 479, 494, says : “From these authorities, and others to the same effect might be cited, it is clear that, by the settled law in the United States, such agreements are not invalid, because against sound principles of policy, and are upheld and enforced, * * * if followed by immediate separation, or if separation has previously taken place.”
In Edleson v. Edleson, 179 Ky. 300, it is said: “It has, however, long since been thoroughly established, as an equitable doctrine, that a contract between husband and wife made in contemplation of the continuance of a previous separation, or in contemplation of immediate separation, where disagreements have arisen between them, and the contract has for its purpose an adjustment of their respective property rights, and the making of a provision for the support of the wife, will be enforced, in equity, if fairly made and just.”
In Randall v. Randall, 37 Mich. 563, Judge Cooley says: “When a separation has actually taken place, or when it has been fully decided upon, and the articles contemplate a suitable provision for the wife and children, or an equitable and suitable division of the property, the benefits of which both have enjoyed during the coverture, no
Many other cases holding to the same effect might be cited from other jurisdictions, but the position that where husband and wife find it impossible to dwell together in harmony, because of' the misconduct of one which would warrant a legal separation, decide to enter into a contract adjusting all the property rights, and each relinquish any rights in the property of the ,other, and providing for the immediate separation of the parties, is valid and will be enforced, is supported by the great weight of modern authorities, and is in consonance with reason and justice. There is nothing in the record in this case to indicate that the contract of settlement and for separation was unfair or inequitable, the parties having freely entered into the same and lived up to it until the death of one of the parties, there appears to be no good reason for not enforcing the same.
The judgment of the district court is
Affirmed.