Sawyer v. Churchill

HasELTon, J. This is a bill in chancery brought by the children of Zebedee P. Churchill, deceased, against Sarah Emeline, his widow, and against the administrator of said Zebedee. The bill sets up' among other things, that said Sarah Emeline was the third wife of said Zebedee and not the mother of any of his children; that she was married to him January 21, 1898, and that she lived with him only about five months, when by mutual consent a separation took place, and that they ever after lived apart from each other, the Said Zebedee dying December 17, 1902; that after said separation, said Sarah Emeline did nothing towards the support and care of said Zebedee, who was an old man in need of care, .comfort, and assistance. The bill further states that June 7, 1898, which was within five months after the marriage, the said Zebedee and the said Sarah Emeline entered into a certain written and [276] sealed contract which is set forth. This instrument, however, recites a contract made between, husband and wife on their wedding day, by virtue of which the wife should release the husband from'all claims which she, as wife, might have upon him, upon the payment by him to1 her of the sum of $300.00. The instrument further recites the payment of the $300.00 and proceeds as a release from her to him. of all claims upon him as wife, and an agreement to maintain herself in sickness or in health and without any claim, upon him by her or in her behalf. In referring to the date of the wedding as the date of the contract, the phrase “to wit” is used, but- this instrument is not a piece of pleading and the phrase has here no materiality., The bill further sets out that the husband paid the $300.00, and that this instrument was thereupon delivered by the said Sarah Emeline to the said Zebedee, and that he accepted it, and retained possession thereof until his death. It would appear, then, that contemporaneously with the contract of marriage solemnized by the State, there was an agreement between the parties that marital rights and obligations should cease whenever the husband should pay the wife the $300.00 specified. To avoid harsh phraseology, the marriage seems tot have been experimental, so far as the parties thereto could make it so; a travesty of marriage and a mockery of marriage vows. The instrument further recites that for the “same consideration” the said Sarah Emeline releases, assigns, and conveys to, the orators all right, title, interest or claim which she “may have as widow” in or toi the estate of her said husband. But according to the recitals of the instrument, this consideration was exhausted in the procurement of the release of the claims of the wife to support, and soi there was no consideration for the assignment to the orators of any claim which she “as widow” might thereafter have upon her hus [277] band’s estate. There was no consideration for the assignment moving from, the orators, or- from the husband or any one else for the benefit of the orators. The bill further sets out, in effect, that there was no rescission, or attempted rescission, of the contract in the life-time of Zebedee, and that after his death, on the 25th day of July, 1903, and not before, she offered to “return” the principal sum: of $300.00 to the administrator of said Zebedee. It appears from- the bill that this offer was in the presence of the probate court, and that the orators protested that the administrator should not accept the offer. It further appears from the bill that June 6, 1903, the said Sarah Emeline filed a widow’s waiver as full and complete as could be filed under the Vermont Statutes and amendments thereto, and demanded an allowance out of the estate. However, the widow’s waiver, contemplated hy the statute, is of some provision of some kind the benefit of which she is to get upon or after the husband’s death. Chaffee v. Chaffee, 70 Vt. 231, 40 Atl. 247; Acts of 1896, No'. 44. The bill further states that the sum of $300.00 paid to said Sarah' Emeline was a just, adequate and reasonable share for her out of the estate of her husband. The bill prays that specific performance on the part of aaid Sarah Emeline Churchill may be decreed, that temporary restraining orders may be made, and that general relief may be granted. On demurrer the bill was dismissed and the orators appealed. We think that the court of chancery was right in dismissing the bill. Separation agreements, not contemplated at the time of marriage, and not brought about by a frivolous view of the marriage obligation, may come about for such reasons, and may be of such a character, that courts of equity will recognize them, and will enforce the specific performance of pecuniary agreements relating thereto. But the State is, [278] on grounds of public policy, interested in the permanency of a marriage relation which it has sanctioned, and courts of equity ought not to enforce the performance of contracts tainted with an understanding, contemporaneous with the marriage, looking to a possible or probable separation in the future, and', in the nature of things, tending to bring such a separation about. Squires v. Squires, 53 Vt. 208, contains in the opinion of the Court delivered by Judge Veazey, a valuable discussion of separation agreements, and points out those that courts may recognize, at least for some purposes. A lengthy and able review of the history and doctrine of agreements for separation is found in the recent case of Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088. But there is hardly need in this case to' refer to the very numerous and very conflicting cases which relate either to separation agreements, or to some of the incidents thereof. The bill, as drawn in this case, seems to have to do with an option of separation, taken and given on the occasion of the marriage, — an option of such a character that, in any resulting state of things, a court of equity ought not to interpose. The decree of the court of chancery dismissing the bill is affirmed and the cause is remanded.