Tallinger v. Mandeville

Bradley, J.: Bor the purposes of this review it must be assume that the ante-nuptial agreement was made as alleged, and was valid, and that unless the obligation created by it to pay the plaintiff $10,000 at the testator’s death, was in some manner released and discharged the plaintiff was entitled to recover. The defense rested upon the effect of the subsequent agreement between the husband and wife, and its performance, and that evidently furnished the ground upon which the nonsuit was ordered. An agreement having in view the separation of husband and wife is against public policy, and yet it is held valid and enforceable in respect to its pecuniary provisions, in case the separation exists at the time or occurs upon the execution of the agreement. But it requires a third party as trustee to render it valid or effectual, without which the agreement is void. (Rogers v. Rogers, 4 Paige, 516.) Bor , the want of such trustee the contract in question, made between husband and wife during coverture, was in that respect, and in whatever respect it was founded upon its provisions for their separation, void. And as a general rule when several stipulations, some of which are void, rest upon one and the same consideration for support, all of its provisions are void. (Saratoga County Bank v. King, 44 N. Y., 87; Friedman v. Bierman, 43 Hun, 387.) It is contended by the plaintiff’s counsel that this doctrine is applicable here and denies to the agreement, and to the transactions pursuant to it, any legal foree by way of defense to the alleged cause of action upon the ante-nuptial contract. That would be so if the agreement had remained executory, because as such it was void. It was, however, executed by the husband in so far that he paid to the plaintiff at the time of its execution the $5,000 pro [154] vided for by it which, on his part, was a complete performance. It is upon the fact of such performance that the defense must stand, if it has any support. And in such case relief is not wholly denied to the party who has performed, merely because some of the stipulations of the contract are void, and, so far as they remain executory, are ineffectual to support any remedy. (Vansittart v. Vansittart, 2 De Gex & Jones, 249; King v. Brown, 2 Hill, 485; Galvin v. Prentice, 45 N. Y., 162; Day v. N. Y. C. R. R. Co., 51 id., 583.) Amongst other things the plaintiff agreed to accept the $5,000 in satisfaction of her claim resting in the ante-nuptial agreement of the defendant’s testator. This undertaking was her separate property. She could do with it as she pleased. And she did accept the $5,000 in performance of the agreement, pursuant to which she had agreed to release or relinquish the claim so created against the husband’s estate at his death. This, we think, she could do by an executed agreement between her and ,her husband when fairly made without fraud, undue influence, or advantage. (Brace v. Gould, 1 T. & C,. 226; Sherman v. Scott, 27 Hun, 331; Sheldon v. Clancy, 42 How., 186; Armitage v. Mace, 96 N. Y., 538; Benedict v. Driggs, 34 Hun, 94.) No question m that respect arises here. And for the purposes of this action that branch of the agreement, in view of the performance and acceptance, must be treated as effectually defeating the plaintiff’s claim upon the ante-nuptial contract. The plaintiff, so far as appears, retained the fruits of. the settlement during the life of the testator, with apparent satisfaction ; and has not attempted, for any cause, to rescind the arrangement under which she received its performance. Its adequacy is not the subject for consideration in this action. And it must have the measure in that respect which the parties by their agreement gave to it. The other and invalid stipulations, which were embraced within the consideration paid by the husband, were executory on the part of the plaintiff only. And while she was not legally required to perform or observe them, it is not apparent that she can make them available to defeat the effect of performance by the testator and its acceptance by her, by way of denial of the relief, which, by the terms of the agreement, was given to the defense. We are therefore inclined to think that upon the facts as presented by the record the plaintiff was not entitled to recover. The judgment seems to have been [155] entered as upon dismissal of complaint on the merits. It is not seen how that could legitimately have been done upon a nonsuit, as this was an action at law on trial by jury. But this may be corrected by motion at Special Term. The judgment should be affirmed. Haight, J., concurred; Dwight, J., not sitting.