159 Ark. 364 | Ark. | 1923
(after stating the facts). There is a division of authorities on the question of whether a parol agreement of adoption whereby a parent surrenders a child to others upon their promise to adopt, rear, and educate it as their own, and to give it the same right of inheritance a.s a natural child, but which is not consummated by a statutory adoption, will, if otherwise 'fully performed, be enforced after the death of the adoptive parents. The views which we shall hereinafter express render it unnecessary to decide this question.
An agreement of separation between husband and' wife in which their property rights are settled is valid and binding between the parties. The law- is that, having entered into a valid separation agreement, the courts will not deem such contract avoidable unless the conduct of the parties is such that they themselves so regarded it. Carter v. Younger, 112 Ark. 483, and Dennis v. Perkins, 129 Pac. (Kan.) 165, and cases cited.
These cases also hold that where the panties to a valid separation agreement afterward come together, and live together as lmsband and wife, where their conduct towards each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement will be held to have been annulled by the parties to it, and their marital rights determined accordingly.
Tested by this rule, we think that the facts and circumstances of this case warranted the chancery court in finding that the marital relations between J. W.. Sherman and his wife never ceased, and that there was mutual forgiveness of the past misconduct on the part of each.
In the first place, it may be said that the agreement of separation shows on its face that it was an indivisible contract. It recites that the parties to it had married in Texas in September, 1917, and had since lived together as husband and wife. It further recites that it is impossible for them to live together any longer as husband and wife. Under the terms of the agreement the husband agreed to make certain repairs on a house belonging to his wife. She agreed to remove all of her property 'and furniture from his residence in a reasonable time. Each waived any right in the property of the other, and agreed to join in the execution of any deed necessary to convey the property.
J. "W. Sherman agreed to leave the city of Arkadel-phia and not again live there so long as his wife should do sd. The agreement was executed on the 14th day of April, 1921. The parties never, in fact, separated, but lived together in the home of the husband until he died on January 10, 1922. The husband was sick for five weeks, and his wife attended him faithfully during his last illness. The attending physician and their neighbors testified that slie conducted herself as a faithful wife towards her husband.
The wife testified that they lived together during all of this time as husband and wife, and that her husband, for the most part, made the repairs on her house himself. According to her testimony, they never separated, and never considered that the separation agreement had any binding force and effect.
The agreement of separation contemplated that- he should leave the city of Arkadelphia, where they résided at the time. He not only did not leave, but the parties continued to live together in his home until his death nearly a year later. During all this time there was nothing in their conduct towards each other to indicate to their neighbors that they had separated and were not living together as husband and wife. The husband continued to support his wife, and they discharged their marital duties to each other. This conduct shows an intention on the part of bath of them to consider the separation agreement ended in all respects. .
The preponderance of the evidence indicates that it was not only their intention to end the contract, in so far as it required them to live apart, but also to annul it as to the settlement of their property rights. Hence the wife became entitled to support from her husband, and was supported by him until he died. She then became entitled to dower in his estate.
The evidence shows that, the property in controversy was a new acquisition, and that J. W. Sherman died without having any children of his own. Hence it was the contention of the widow that she was entitled to one-half of his property in fee simple, as her dower, under § 3536 of Crawford & Moses’ Digest. Earl v. Earl, 145 Ark. 559.
On the other hand, it is the contention of Frank Grould 'Sherman that, even if the separation agreement be deemed annulled, the- widow is entitled to only one-third of the personal property absolutely as her dower, and one-third of the realty for her life only.
The chancellor upheld the contention of the widow, and we think that his decision is correct. In the first place, it may be stated that Mrs. N. E. Sherman was the second wife of J. W. Sherman, and. was no party to the agreement to adopt Frank Gould Sherman. That agreement was made during the life of J. W. Sherman’s first wife. Frank Gould Sherman was never legally adopted by them. They agreed verbally to adopt him and raise him as their own child. The father of Frank Gould Sherman turned him over to J. W. Sherman and his wife, to be raised by them and treated as their own child. He knew that no statutory adoption was made or undertaken ■by them. Eelianee was placed entirely upon their- verbal agreement to take him and care for him as their own child. This they did, and always manifested the like affection for him as parents usually do 'for their own children.
When the first wife of J. W. Sherman died, Frank Gould .Sherman continued to reside with J. W. Sherman. After the latter married again, he continued to reside with them until after they moved from Texas to Arkansas. Frank Gould Sherman then went to Michigan, and resided there until he was summoned back to Arkansas during the last illness of J. W. Sherman. Hence, under the undisputed testimony, he does not occupy the relation of an adopted child, but only stands in the relation of an infant child for whose benefit a parol contract to adopt had been made.
As we have just seen, the plaintiff was not a party to that agreement, and such an agreement could not in any wise operate to bar her dower. The agreement had not been carried into effect when her husband died. Our statute now under consideration gives the widow an absolute estate in the property of her husband, and the interest thus conferred vests immediately in her upon the death of her husband. She takes absolutely an undivided oue-lialf interest in fee simple, and it is such an interest as immediately vests at her husband’s death. Barton v. Wilson, 116 Ark. 400; Crowley v. Mellon, 52 Ark. 1; Jacks v. Dyer, 31 Ark. 334; Tate v. Jay, 31 Ark. 576, and McGuire v. Cook, 98 Ark. 118.
J. W. Sherman died seized and possessed of the real and personal estate involved in this lawsuit, and there was no valid lien on it. Mrs. N. E. Sherman had not released or relinquished her dower in any.part of said estate. The verbal promise of her husband to adopt Frank Gould Sherman could not have the effect to' deprive her of her dower in his estate. She could only do that by some affirmative act on her part releasing or relinquishing her dower, or by some act which would operate as an equitable estoppel against her.
Nothing of this sort is shown by the record, and it follows that tlie chancellor was correct in holding ‘that she was entitled to dower under the provisions of § 3536 of Crawford & Moses’ Digest.
No other issues are raised by the appeal, and it follows that the decree will be affirmed.
