56 Ind. 538 | Ind. | 1877
Suit by the plaintiff, against the administrator of Jesse Rainbolt’s estate, to recover the five hundred dollars allowed a widow by statute out of her deceased husband’s estate. 2 R. S. 1876, p. 507, sec. 43.
In addition to the general denial, the defendant filed two special paragraphs of answer, the first of which was as follows: “ The defendant admits the marriage alleged by plaintiff, the death of her said husband, that the plaintiff is his widow, and that her said husband died the owner of personal and real property; that defendant is administrator upon his estate; that plaintiff, before suit, demanded the five hundred dollars, and that he refused to pay, etc. But he says that said plaintiff was the second wife of said decedent, and that there was no issue of said marriage; that, at the time of said marriage, said plaintiff was a widow and said decedent a widower, and
A second affirmative paragraph of answer was filed, precisely like that copied, with the exception that it did not aver that the contract was in writing and lost.
A demurrer to these affirmative paragraphs was overruled ; a reply in denial was filed; there was a trial by the court, and a finding for the defendant. A motion for a new trial was denied, and final judgment in the cause rendered. The evidence is in the record, and it tends to establish the parol contract set up in the second affirmative paragraph of answer. The court held the contract in part valid and separable. The contract, in this case, between the parties, was not made in consideration of marriage, but rather in contemplation of marriage; and the consideration was the mutual relinquishment of prospective property rights. In this respect the case is, in principle, like Riley v. Riley, 25 Conn. 154. In that case, the parties, on the eve of marriage, agreed that certain promissory notes, which Mrs.' Eiley, then single, held on Mr. Eiley, should not be extinguished by the marriage, but should remain her separate property, collectible out of his estate, if she would forbear to insist on their pay
“As to the objection derived from the statute of frauds and perjuries, we think there is no ground for it. The ante-nuptial promise was made in consideration of forbearance, and not in consideration of marriage, though it was made in contemplation of marriage, which is not inconsistent with the claim of the appellant’s counsel, that a promise in consideration of marriage must be in writing. Marriage was not the meritorious cause of Riley’s promise; the marriage obligation was already perfect, and the promise in question was made upon the assumption that it was so, and for the exact purpose of saving the notes from the effect of the marriage, when the marriage contract should be executed.” For contracts in consideration of marriage, see Flenner v. Flenner, 29 Ind. 564, and Brenner v. Brenner, 48 Ind. 262. See also, in this connection, Houghton v. Houghton, 14 Ind. 505; and 1 Bish. on the Law of Married Women, secs. 806-807, and notes; Richards v. Richards, 17 Ind. 636.
The contract is not within that clause of the statute of frauds, which prohibits an action to be brought, “to charge any person, upon any agreement or promise made in consideration of marriage,” unless, etc. 1 R. S. 1876, p. 503, sec. 1, clause 3.
But a part of the contract is within that clause of the statute, which prohibits an action upon a contract for the sale of real estate, etc., unless the contract is in writing. 1 R. S. 1876, p. 504, sec. 1, clause 4.
A part of the contract relates to personal property which might be sold by a parol contract. This suit relates alone to personalty; but the answer avers, and the proof shows, that the contract was an entirety for both kinds of property, and was by parol, and the question is, is it one that is separable so as to permit a recovery as to a part, or is it inseparable, so that the whole is incapable of enforcement by law ? ■
In Browne on the Statute of Frauds, p. 135, sec. 140, it is said: “ It is clear that if the several parts or items of ' an engagement are so interdependent that the parties can not reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one part or item can not be fairly and reasonably extracted from the transaction, no recovery can be had upon such part or item, however clear of the statute of frauds it may be, or whatever be the form of action employed. The engagement in such case is said to he entire.”
Ye give one more extract. It is from the case of Rand v. Mather, 11 Cush. 1: “ On principle and according to numerous modern adjudication's, the true doctrine is this: If any part of ,an agreement is valid it will’ avail pro tanto, though another part of it may be prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound part can be separated from the unsound, and be enforced without injustice to the defendant. * * In the application of this doctrine, Chancellor Kent says: ‘ If the part which is good depends upon that which is bad, the whole is void; and so I take the rule to be, if any part of the consideration be malum in se, or the good and the void consideration be so mixed,' or the contract so entire that there can be no apportionment.’ 2 Kent Com. (6th ed.) 467.”
The judgment is reversed, with costs, and the cause remanded, for further proceedings.