Whitney v. Closson

Morton, C. J. By the common law, husband and wife cannot contract with each other. This disability is not removed by our statutes, which, while enlarging the capacity and rights of married women in important respects, expressly provide that they [52] shall not authorize contracts or suits between husband and wife. St. 1874, e. 184. Pub. Sts. e. 147, §§ 2, 7. The contract upon which the respondents rely is a contract directly between the husband and wife, without the intervention of a trustee, and is partly executory in character. Neither of the parties could, during their lives, enforce the contract against the other, not merely because of the disability to sue, but for the reason that the contract itself is contrary to law and is void. It appeared at the hearing, that the husband, on the same day the agreement was signed, gave to one Sheldon his five promissory notes of $200 each, and, to secure them, executed a mortgage of real estate to said Sheldon; and that the said notes were intended to be for the sum of $1000 mentioned in the agreement. Two of the notes were paid during his lifetime, but no part of the money has come to the petitioner. But this does not make Sheldon a party to the contract, or remove the difficulty that the contract between the husband and wife was void. The giving the notes and mortgage was the mode adopted of paying the sum named in the contract, and has no more effect than if the money had been paid to the wife, or to Sheldon for her use. The petitioner undertook to agree with her husband that she would release all claims upon his estate, not merely in consideration of $1000, but also in consideration of his covenants and stipulations that he would release all claims upon her property, which covenants and stipulations are void and of no effect. We are of opinion that, upon the facts of this case, the petitioner is not barred of her right to the real estate of her husband to an amount not exceeding $5000 in value. Decree of Probate,Court reversed.