Watson v. Burnley

Per Curiam. (After stating the certified questions.) 1. The first question propounded to this court is, whether the agreement recited is void as being contrary to public policy, in that it provides for a divorce between the parties and dissolution of the marriage contract as one of the contingencies on which the alleged contract should be carried out. Dnder no fair construction of the contract can the conclusion be reached that it provides for a divorce between the parties and the dissolution of the marriage contract as one of the contingencies on which the alleged contract should be carried out. The rights of the wife, who is living separate from her husband, to [463] institute proceedings for divorce are in no wise to be affected' by anything that she may do in regard to the institution of divorce proceedings. She is neither stimulated to bring such proceedings nor is she restrained from bringing them. Nothing in the terms of the instrument affects in any way her rights or her volition upon this subject. The separation between herself and her husband, so far as appears from the question propounded, which includes the instrument itself, is an accomplished and existing fact. In the case of Sumner v. Sumner, 121 Ga. 1 (48 S. E. 727), it was said: “ The mere fact 'that the deed from Sumner to his wife was executed pursuant to a separation, and to provide a separate maintenance for the wife, did not render it invalid. ' ‘A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation/ is contrary to public policy and void. Birch v. Anthony, 109 Ga. 349. But a contract providing for the wife’s maintenance, made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga. Supp. 99; 1 Bish. Mar. Div. & Sep. § 1278; Fox v. Davis, 113 Mass. 255; Randall v. Randall, 37 Mich. 563; Gaines v. Poor, 60 Ky. 503; Hutton v. Hutton, 3 Pa. St. 100. . . An agreement between husband and wife to live'separate and apart is illegal; and if a conveyance to the wife be founded upon such a consideration, it too will be void; but not if it be the result of a separation instead of being made to promote it.” And in the case of Melton v. Hubbard, 135 Ga. 128 (68 S. E. 1101), this ruling was upheld and applied. The dissenting Justice placed his dissent upon the ground that under a proper construction the contract in question was not the result of separation, but was intended to promote separation between husband and wife, and therefore contrary to public policy. But in the case at bar we are to assume from the question propounded itself that the separation had already taken» place. The application of the doctrine of the cases referred to requires the first question propounded by the Court of Appeals to be answered in the negative. 2. It is declared in the Civil Code, § 2929, that “every effort to restrain or discourage marriage by contract, condition, limitation, or otherwise, is invalid and void.” Applying this provi [464] sion of law to the contract under consideration, the question is, whether the effect of the contract between the parties is to restrain or discourage a subsequent marriage of the wife. If the wife should marry again, the second husband would be responsible for her support. This was evidently in the minds of the parties in making this contract; and it was contemplated that the wife, would have no occasion, in the event of her subsequent marriage, to resort to the provision contained in the contract for the monthly payments stipulated to be made to her. In these circumstances a reasonable construction of that provision of the contract that the payment of $25 per month should terminate if the wife should remarry is, that such provision should merely terminate when she should remarry and there should no longer be a necessity for it; and it was not intended as a condition, or limitation, or other provision made in an effort to restrain or discourage the wife from entering into a subsequent marriage. There is no agreement upon the part of the wife not to marry again, and no stipulation that she should not marry. The provision is merely expressive of the duration of the term during which the wife should receive the benefits. In this view, the second question propounded by the Court of Appeals should also be answered in the negative. All the Justices concur.