45 A. 646 | N.H. | 1899
Did Martha J. Emery, by the agreement of April 29, 1885, release her right to such share of the personal estate of her husband as she would be entitled to at his death, including a distributive share and such reasonable allowance as the judge of probate might make her? It appears that at the time of her marriage she had property of the value of about $1,100, and her husband of about $2,000; and from that time to the date of making the agreement they added to the same until their joint property was then worth about $15,000, consisting of personalty, which was in the possession of the husband, and real estate, the title to which was in his name. It also appears from the agreement itself that "certain disputes and controversies" had arisen between them "in regard to their respective interests" in this property.
The situation at the time the agreement was entered into, as disclosed from the surrounding circumstances and from the instrument itself, was the joint ownership by the husband and wife of property then in the husband's hands, and a disagreement as to the amount belonging to each. This controversy had reference to the respective interests which each party had in the property in the lifetime of the other, and to the portion that each should have upon the execution of the agreement. There is nothing to indicate that the controversy had any relation to the share which the survivor should take in the other's estate, or that, in making this agreement, they had that subject in mind.
The purpose for which the agreement was made clearly appears in the instrument itself: The language of the second clause "Now, for the purpose of settling the same," refers to the controversy about the division of this property, which had been clearly set forth in the preceding clause. And the further language, "and of adjusting the rights of the respective parties therein and thereto, to the end that the said Martha J. Emery may receive her separate estate therein," shows that the parties *637 intended by this instrument to definitely fix the rights of each in this property and give to the wife her separate estate.
By the further terms of the instrument, she agreed to receive $6,000 "in full payment and satisfaction for all her right, title, interest, and separate estate in and to said real estate and personal property." And in consideration of that sum, she released "all right, title, interest, or claim in and to said real estate, and the balance of said personal property remaining after the payment of said $6,000 as aforesaid." And her husband, by the further terms of the writing, agreed to pay her that sum "for all her right, title, interest, and separate estate in and to said real estate and personal property," and further released "all right, title, interest, and claim in and to said $6,000," and agreed that she should hold the same "as her own separate estate, in her own right, and to her sole and separate use, free from his interference and control, and to her heirs and assigns forever."
The language thus employed was apt and proper to effect a division of their joint property, and to provide that the wife's portion should be held as her separate estate, free from the control of her husband. There is no language in the instrument which indicates that the parties intended that the wife should release any claim she might have to the personal estate of her husband in case she survived him. If that had been the intention of the parties, they would doubtless have used proper language to express it. There is nothing in the agreement which can be held to be a bar to her claim for such share of the personal estate of her deceased husband as a widow is entitled to by law.
The terms of the agreement did not provide that the parties should live separate, and that the parties did not so understand it is indicated by the fact that they lived together a year and a half afterward. The mere fact that they lived separate a few years before the husband's death, in the absence of anything to show that it was due to the fault of the wife or was even desired by her, is not of itself sufficient to bar her claim for an allowance, or to show that the decree of the probate court granting her one ought on that account to be reversed. Slack v. Slack,
The remaining question, whether the allowance was reasonable or not, is a question for the trial term.
Case discharged.
PEASLEE, J., did not sit: the others concurred. *638
