Civil action to recover for services rendered by plaintiff to her late husband and for support furnished at his instance and for his benefit upon the express promise that he would "make a will . . . and devise to the plaintiff in fee . . . (the home place) his house and lot . . . in the City of Asheville."
John Ritchie was a porter or doorman at the Langren Hotel. On 18 February, 1936, he and the plaintiff were married and they lived together in Asheville until December, 1943, when they went to Philadelphia, Pa., so that the husband could have his eyes treated by a physician in that city and the wife could secure employment in a defense plant at good wages. They lived there as husband and wife until the husband's *Page 452 death on 25 February, 1945, intending, however, to return to their home in Asheville after the war. There were no children of the marriage. Plaintiff's husband was much older than she.
In July, 1942, John Ritchie became helpless from old age, feeble health and rapidly failing eyesight. He entered into a verbal agreement with his wife to devise her the home place in exchange for her "doing his cooking, sewing, mending and nursing, and furnishing medicines, physicians, lodging, gas, telephone, lights, water, coal and food," stating at the time that the property would amply compensate her, and that he expected her to be paid for "her said services in providing for his nursing, care and support."
The plaintiff, in fulfillment of her promise and in expectation of compensation, first worked in Asheville and devoted her time and earnings to her own and her husband's support, and later in Philadelphia she paid her husband's bills for house rent, medicines, physicians, hospital, water, light and telephone and devoted herself to nursing, sewing, cooking, washing and mending for him. All the moneys expended by the plaintiff for her own support and that of her husband came from her earnings.
As plaintiff's husband died intestate, she filed claim with the administrator of his estate "for services and maintenance" rendered and provided under the agreement with her husband, which she valued at $2,352.20. The claim was rejected, hence this suit.
From judgment of nonsuit entered at the close of plaintiff's evidence, she appeals, assigning errors. The question here presented is one of first impression in this jurisdiction. A widow seeks to recover for domestic services and for support furnished her husband under a promise by him to devise her the home place in his will. The husband dies intestate. Is the widow entitled to recover from his estate on quasi-contract or implied assumpsit the value of such services and support? The law answers in the negative.
While it is true that in ordinary transactions married women are permitted to deal with their earnings and property practically as they please or as free traders, Price v. Electric Co.,
There are three parties to a marriage contract — the husband, the wife and the State. For this reason marriage is denominated a status, and certain incidents are attached thereto by law which may not be abrogated without the consent of the third party, the State. The moment the marriage relation comes into existence, certain rights and duties spring into being. One of these is the obligation of the husband to support his wife, Frenchv. McAnarney,
Married couples are free to contract with each other concerning their property rights in the manner provided by the statutes on the subject, but they are not at liberty, by private agreement, to transfer from one to the other or to absolve either of the obligations which the marital status imposes. Van Koten v. Van Koten,
The case of Corcoran v. Corcoran, supra, is in many respects much like this one. There a husband conveyed a house and lot to his wife in consideration of her promise to provide the family support and maintenance. Upon default, the husband sued his wife in damages for breach of the contract. It was held that the alleged contract was not an enforceable agreement, and that the complaint did not state facts sufficient to *Page 454 constitute a cause of action. In the course of the opinion, the Indiana Court had this to say: "The law makes it the duty of the husband not only to support himself, but his wife and children as well; and we know of no rule of law or of public policy which gives any countenance to an attempt by a husband to abdicate the duty which the law casts upon him, and impose it as an obligation upon his wife through the medium of an ordinary oral contract. . . . Under the enlightened policy of modern legislation, married women have been relieved of many common-law disabilities, but we have not yet progressed so far as to enable a married woman to bind herself by contract with her husband to assume his obligation to furnish support for both."
The mutual rights and duties growing out of the marital relationship are not affected by the statutes relating to the capacity of married women to contract and dispose of their property as if they were unmarried. G.S.,
Clearly, the plaintiff may not recover for domestic services which are imposed by her marital status, even upon an express promise by her husband to pay for such services, as this would be without consideration and contrary to public policy. Frame v. Frame,
In Foxworthy v. Adams,
It is provided by G.S.,
Likewise, if the contract for support be ineffectual, as it is here, whatever the wife expends under the agreement would be regarded as her contribution to the family budget. Dorsett v. Dorsett,
In Oates v. Oates, ...... W. Va., .....,
Notwithstanding the arrangement between plaintiff and her husband, the latter remained liable for the support of both. Hence, voluntary payments of her husband's bills, would not entitle the plaintiff to recover the moneys so expended as a matter of law. Spalding v. Spalding,
Even in a separation agreement, executed after or in immediate contemplation of separation, the measure of the husband's liability is not necessarily determined by the terms of the agreement, but by what the law pronounces a just, fair and reasonable allowance to the wife in the light of the circumstances and condition of the parties. Smith v. Smith, ante, 189; Garlock v. Garlock, supra; Vock v. Vock,
Plaintiff suggests, however, that the moneys expended by her in discharge of her husband's obligations should be regarded as advancements or loans under the principle announced in George v. High, supra; Anno. 101 A.L.R., 442, or as payments impelled by necessity, which, for all practical purposes, rendered them involuntary, and therefore recoverable,McDaniel v. Trent Mills,
It is conceded that the plaintiff cannot recover on her husband's promise to devise the home place to her in exchange for services to be rendered and support to be furnished, since the promise rests only in parol, Daughtry v. Daughtry,
Finally, the plaintiff insists that she and her husband acted in good faith, and that the arrangement made, which was the only one possible in the circumstances, was in actual discharge of her husband's legal duty to provide support for himself and his family. Anno. 101 A.L.R., 442. From a practical standpoint, the argument may have a certain appeal, and had the husband devised the home place as he promised to do, the case would not be here. But we are face to face with the proposition that the agreement between the parties was ineffectual as a contract and unenforceable as such. 26 Am. Jur., 942. Hence, the law will not imply an enforceable agreement which the parties themselves could not effectually make.
The case is not like Grady v. Faison,
The plaintiff's dower interest in the land is not at issue. She is seeking to recover for services rendered and support provided.
The judgment of nonsuit was properly entered.
Affirmed.