50 Ga. 546 | Ga. | 1874
It may truly be said in this case, as was remarked by Lord Eldou in the case of Gordon vs. Gordon, 3 Swanston, 400, which bears some resemblance to this: “ 1 have never known a case in which it was more the duty of a Judge to make a covenant with himself not to suffer his feelings to influence his judgment.” But outside of what may be considered the personal or private obligations between these parties, or as to what would be right between a brother and sister, there is a cardinal principle involved almost of universal application, and which is fatal to complainant’s case. It is that which is raised by the third ground taken in the demurrer. That ground is, that “the alleged contract is illegal, immoral and contrary to public policy.”
It is not denied that it has been frequently held, both in English and American cases, and by this Court, that parties interested in the estate of a deceased person, or who have expectations of being such, may contract between themselves as to how the same shall be divided, if the contract be fair and without fraud. But in nearly all of those cases the decisions are put on the ground, either that the agreements had been made to avoid or settle family controversies, to adjust doubtful rights, to preserve the harmony and affection or honor of the family, or that there was a valuable consideration. I will refer to a number of them: Watkins vs. Watkins, 24 Georgia, 402, was a case of an agreement to settle a doubtful right, and to prevent a family controversy. The father had died, and some of the children were about to caveat his will. In Fulton vs. Smith, 27 Georgia, 413, the agreement recited that the father had divided his property unequally, which was not his intention when he was of a sound and disposing mind, and for that and other reasons stated, the children made a special agreement, which was enforced. So in Smith vs. Smith, 36 Georgia, 184, the father had died, and the heirs were in doubt whether there was a will. One of them knew there had been a will about a year previous. He was almost the
In Pullen vs. Ready, 2 Arkansas, 587, the agreement was about property bequeathed by will. Lord Hardwick sustained it on the ground that it had entirely settled all disputes between the parties and their several rights. Cory vs. Cory, 1 Vesey, Sr., 19; Neal vs. Neal, 1 Keen’s Reports, 672; Stapleton vs. Stapleton, 1 Arkansas, 2; Stockley vs. Stockley, 2 Ves. and Beam., 23, are all cases arising on contracts of the nature of family arrangements. The decisions in them are put on the ground as stated by Sugden, Chancellor, cited in note on Stapleton vs. Stapleton, 2 Wharton & Tucker’s Equity cases — “ that whenever doubts and disputes have arisen with regard to the rights
It is not necessary to dispute the authority of these decisions (which we do not,) to sustain the judgment we render. In neither of them was it the purpose of the contracting parties to defy the authority or advice of a parent, or one standing in loco parentis. They did not have for their object the accomplishment of a purpose directly contrary to the anxious desire of a living father, that would induce a son to place himself in hostility to that father, and which, under his well known and avowed wishes, instead of maintaining family harmony and affection, would create discord between parent and child, and probably sever the relations then existing between the father and both of these children, his only children. This contract between complainant and her brother had for its declared object the repudiation of a parent’s advice and authority, so that both might be set aside during his life, with a guaranty of impunity to the son for any disobedience or want of filial loyalty on his part. Hów different was the spirit and intent of this contract from what Judge Story says is the reason why the agreements in the cases cited have^been
The law has a high regard for parental authority, and will give effect to nothing which tends to encourage disobedience to it. The same eminent jurist just cited, in speaking of contracts having that effect, after referring to post-obit bonds, and contracts affecting the marriage of children, adds: “ When, indeed, the obligation to m'arry is reciprocal, although the marriage is to be deferred to a future period, there may not be, as between the parties, any objection to the comract in itself, if, in all other respectó, it is entered into in good faith, and there is no reason to suspect fraud, imposition or undue influence. But even in these cases, if the contract is designed by the parties to impose upon third persons, as upon parents, or friends standing in loco parentis, or in some other particular relation to the parties, so as to disappoint their bounty, or to defeat their intention in the settlement or disposal of their estates — then, if the contract is clandestine, and kept secret for this purpose, it will be treated by Courts of equity as a fraud upon such parents or friends, and, as such, be set aside, or the equities will be held the same as if it had not been entered into. The general ground upon which this doctrine is sustained is, that parents and other friends standing in loco parentis are thereby induced to act differently in relation to the advancement of their children and relatives, from what they would if the facts were known; and the best influence which might be exerted in persuading their children and relatives to withdraw from an unsuitable match is entirely taken away. To give effect to such contracts would be an encouragement to persons to lie upon the watch to procure unequal matches, against the consent of parents and friends, and to draw on improvident and clandestine marriages, to the destruction of family confidence and the disobedience of parental authority. These are objects of so great importance to the best interests of society that they can scarcely be too deeply fixed in
This long extract is given to show how jealous the law is of whatever tends to the destruction of family confidence, or to induce the disobedience of parental authority. It may be added that no Court has ever upheld an agreement which had that effect — which, on its face, discarded the authority of a living parent, and bargained for post-obit immunity for the one who repudiated that authority.
I have made no reference to a large class of cases, involving secret contracts with third persons, strangers to the family, as to the marriage of a son or daughter to such third person, with a penalty annexed in case of non-performance. In none of these cases, if the contract contravened the authority of the parent or the person in loco parentis, or was made in defiance of his. known wishes, was the agreement upheld. And the ground upon which their rejection is chiefly put is, that they operate as a fraud upon, and are subversive of the rights, interests and authority of parents.
There are other grounds taken in the demurrer upon which-some of the members of this Court have doubts; but it is unnecessary to discuss them, as the judgment rendered finally disposes of the case. The demurrer ought to have been sustained.
Judgment reversed.