CHAPTER VII.

CONTRACTS AFFECTING MARRIAGE.

§ 25. Contracts to Promote or Rupture the Marriage Relation. 26. A Contract for Immediate Separation and Support, or for Support after Accomplished Separation, Valid.

27. Agreement for Separation and Support Supersedes only in Part Marital Duties.

28. Trustee in Marital Separation not Essential, but Husband Treated as Trustee, and not Criminally Liuble for Nonsupport.

29. Contract Void when Immediate Separation not Contemplated. 30. Contracts Regarding Property, but in Partial Restraint of Marriage.

§ 25. Contracts to Promote or Rupture the Marriage Relation.-Marriage is always favored as promoting morality, and as a means of increasing the strength and prosperity of the State, and it is universally held a good consideration to sustain a contract.'

In Shadwell v. Shadwell, 9 C. B. N. S. 159, an uncle wrote to his nephew as follows: "My dear Lancey: I am so glad to hear of your intended marriage with Ellen Nicholl, and, as I promised to assist you at starting, I am happy to tell you that I will pay you 150 pounds yearly during my life and until your annual income derived from your profession of a chancery barrister shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require. Your affectionate uncle, Charles Shadwell." It was held that the promise was binding, and made upon good consideration. So also marriage is a good consideration for a deed.'

It is declared by the courts a consideration of the highest value. There is no consideration so much respected in law as the consid. eration of marriage. Co. Litt. 9 (6). It runs through the entire

'Harrison v. Trader, 27 Ark. 290; McCaw v. Burk, 31 Ind. 62; Richardson v. Schultz, 98 Ind. 425; Frank's App. 59 Pa. 194; Butterfield v. Stanton, 44 Miss. 36; Wright v. Wright, 54 N. Y. 440; Herring v. Wickham, 29 Gratt. 628, 26 Am. Rep. 410.

Gibson v. Bennett, 4 New Eng. Rep. 412, 79 Me. 302.

settlement and supports all parts of it, thus making marriage not only a high, but the highest consideration known to the law.'

An agreement by a father with the future husband of his illegitimate daughter, to settle, at his, the father's, death, his "whole estate" upon the husband, in consideration of the marriage, is valid, and will bind the property belonging to the father at the time of his death.'

A verbal promise made by a father to the husband of his daughter before his marriage, to convey certain land to him, is founded on the highest consideration and is a sufficient consideration for a written agreement for that purpose after the marriage.'

If a father promises A that if he will marry his daughter, he will give a certain amount as a marriage portion, and if in contemplation of such promise A afterwards marries the daughter, the father will be bound by the promise.*

If A promise B that if he and A's daughter marry, “he will endeavor to do her equal justice with the rest of his daughters, as fast as it is in his power, with convenience," and the marriage be afterwards had with his consent, the promise is not void for uncertainty, and is sustained by a sufficient consideration. Such promise is to be treated not as made in the interest of the wife alone, but to the husband and wife jointly, not to be satisfied by a conveyance of land to the wife alone; but the husband may elect to consider it a personal contract, and, if he survives his wife, sue thereon in his own name."

A promised B if he would get himself a wife and have a child, he would give him $500. In an action by B to recover this sum from the executor of A, the condition having been fully performed, relying on the promise, the promise was held to be supported by a good consideration."

1Ford v. Stuart, 15 Beav. 499; Nairn v. Prowsé, 6 Ves. Jr. 752. See Magniac v. Thompson, 32 U. S. 7 Pet. 348, 8 L. ed. 709; Prewit v. Wilson, 103 U. S. 22, 26 L. ed. 360; De Barante v. Gott, 6 Barb. 497; Wood v. Jackson, 8 Wend. 26; Dugan v. Gittings, 3 Gill, 138, 43 Am. Dec. 312; Wright v. Wright, 54 N. Y. 440.

Wall v. Scales, 1 Dev. Eq. 472.

'Argenbright v. Campbell, 3 Hen. & M. 144.

Ogden v. Ogden, 1 Bland, Ch. 284.

Chichester v. Vass, 1 Munf. 98.

*Gurvin v. Cromartie, 36 N. C. 174.

The law favors an ante-nuptial settlement executed in good faith, and the agreement will be considered as having embodied the real intention of the parties at its date, and therefore conclusive of the rights of the parties to it; and the resumption of her marital duties by a wife, who has voluntarily estranged herself from her husband because of her dissatisfaction with such a contract, is no consideration for a revocation of the settlement, substituting therefore her rights under a statute. There must be a meritorious or valuable consideration for such a revocation of an anti-nuptial settlement.' Where the sole inducement was the doing of that which the wife was legally bound to do-the estrangement having been without justification, and a wanton abuse of the marital relation for mercenary purposes, reconcilement was her duty-public policy forbids that the performance of such duty be made the subject of barter and sale. The law fixes and regulates the marital relation on public consideration and will not allow the parties to discard and renew it for money." Thus in Roberts v. Frisby, 38 Tex. 229, the Supreme Court held that the husband is not legally bound by a post-nuptial contract in which he hires his wife to live with him. The same principle was affirmed by the Supreme Court of Tennessee in Copeland v. Boaz, 9 Baxt. 223; and Mr. Justice Allen of the Supreme Judicial Court of Massachusetts well said: "It is as much against public policy to restore interrupted conjugal relations as it is to continue them without interruption for the same consideration. The right of condonation is not exercised for the sake of justice to the injured party, or with regard to the rights of others or the interests of the public when it is sold for money, and the law cannot recognize such a consideration."

An undertaking to procure a marriage between two parties for a reward is void,' and all marriage brokerage contracts are by the courts pronounced illegal.'

'Stickney v. Borman, 2 Pa. 67.

13 L. R. A. 581.

Kesler's Estate, Pa. Merrill v. Peaslee, 146 Mass. 460; but see Adams v. Adams, 91 N. Y. 381. *Hall v. Potter, 3 Lev. 411; Fuller v. Dame, 18 Pick. 472; Crawford v. Rus sell, 62 Barb. 92; Roberts v. Roberts, 3 P. Wms. 75, note 1; Johnson v. Hunt, 81 Ky. 321: Arundel v. Trevillian, 1 Rep. in Ch. 87; Sterling v. Sinnickson, 5 N. J. L. 756; Scribblehill v. Brett, 4 Brown's Par. Cas. 144. James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Keat v. Allen, 3 Allen (N. B.) 588; Duval v. Wellman, 124 N. Y. 156.

A contract providing, in consideration of certain assessments paid and to be paid by a single man, that an association will pay a certain sum to his wife at marriage, if married to him at the expiration of two years, is illegal.'

A claim for services rendered to a man in procuring for him a wife is invalid, it being against public policy to allow marriage brokerage.' So any contract which has for its purpose a rupture of the marriage relation, is void.❜

§ 26. A Contract for Immediate Separation and Support, or for Support after Accomplished Separation, Valid.—It was reluctantly held by the chancellor in Carson v. Murray, 3 Paige, 500, 3 L. ed. 248, and then only upon the principle of stare decisis as evinced by Baker v. Barney, 8 Johns. 73, and Shelthar v. Gregory, 2 Wend. 422, following the English decisions prior to the Revolution, that a valid agreement for an immediate separation between husband and wife and for a separate allowance for her support, may be made through the medium of a trustee.

The case of Carson v. Murray, 3 Paige, 483, 3 L. ed. 241, was upon a bill in equity by the wife against the executors of her husband, based upon an agreement of separation, for its enforcement out of the estate of the deceased husband. See also Chapin v. Chapin, 135 Mass. 393. But where the agreement was concealed from the court pending the divorce proceedings, it cannot always be enforced.

The case of Baker v. Barney, 8 Johns. 72, was an action to recover of the husband the price of suitable goods sold to the wife after the separation of husband and wife, under an agreement making provision for the support of the wife.

'State v. Towle, 6 New Eng. Rep. 460, 80 Me. 287. 'Antcliffe v. June, 10 L. R. A. 621, 81 Mich. 477.

Sayles v. Sayles, 21 N. H. 312; Goodwin v. Goodwin, 4 Day, 343; Kilborn v. Field, 78 Pa. 194; Muckenburg v. Holler, 29 Ind. 139; Hardy v. Smith, 136 Mass. 328; Hamilton v. Hamilton, 89 Ill. 349; Comstock v. Adams, 23 Kan. 513; Phillips v. Thorp, 10 Or. 494; Cross v. Cross, 58 N. H. 373; Stilson v. Stilson, 46 Conn. 15; Sampson v. Cresson, 6 Phila. 229; Stoutenburg v. Lybrand, 13 Ohio St. 228; Daggett v. Daggett, 5 Paige, 509, 3 L. ed. 808, 28 Am. Dec. 442; St. John v. St. John, 11 Ves. Jr. 536; Com. v. Waterman, 122 Mass. 43; Weeks v. Hill, 38 N. H. 199; Everhart v. Puckett, 73 Ind. 409; Belden v. Munger, 5 Minn. 211; Noice v. Brown, 10 Vroom. 23. 'Speck v. Dansman, 7 Mo. App. 165; Hamilton v. Hamilton, 89 Ill. 349.

And the case of Shelthar v. Gregory, 2 Wend. 432, was an action upon the bond and agreement to separate, and the defense was that after the bond was given and before the installment or sum fell due by the terms of the agreement, the wife returned to and was living with the husband, and was supported by him. In these cases, the husband and wife were living together when the agreement of articles of separation were executed, and separated immediately thereafter. The ruling of the court was to the effect that such articles of separation, considered under these various aspects, were valid. These holdings were based upon decisions made in the English courts, and neither the English nor our own courts have departed or receded from the principle thus laid down. While the husband and wife in Calkins v. Long, 22 Barb. 98, had actually separated before the agreement of separation was executed, the court, in holding that the agreement was valid, cites numerous decisions with approval, in England and several of the states of the Union, to the effect that such agreements are valid and will be enforced where the separation had taken place before, or takes place immediately after, the execution of the agreement of separation; and this case is said (in a note upon page 110) to have been affirmed by the Court of Appeals.

Judge Davis, in delivering the opinion of the court in Walker v. Walker, 76 U. S. 9 Wall. 743, 19 L. ed. 814, while regretting, upon the score of public policy, that the courts of England and of this country had gone so far, was, as was the chancellor in Calkins v. Long, 22 Barb. 103, constrained to hold that a covenant by the husband for the maintenance of the wife, contained in a deed of separation between them, through the medium of trustees, where the consideration is apparent, is valid, and will be enforced in equity, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or for the continuance of one which had already taken place. Indeed it has long since become the settled law of England, and followed in this country, that a valid agreement for an immediate separation between husband and wife, and for a separate allowance for her support, may be made through