the medium of a trustee. Such agreement is not void as against public policy.'

The decision in Holbrook v. Comstock, 16 Gray, 109, was based upon the assumed validity of such a contract. The validity of such contracts was reluctantly conceded in Albee v. Wyman, 10 Gray, 222, being considered obnoxious to grave objections. That they are not illegal or against public policy, see further in Dupre v. Rein, 56 How. Pr. 230, 7 Abb. N. C. 258; Mann v. Hulbert, 38 Hun, 31; Heyer v. Burger, 1 Hoffm. Ch. 1, 6 L. ed. 1043; Rogers v. Rogers, 4 Paige, 516, 3 L. ed. 541; Calkins v. Long, 22 Barb. 97; Simmons v. McElwain, 26 Barb. 419; Cropsey v. MeKinney, 30 Barb. 47; Wallace v. Bassett, 41 Barb. 92; Anderson v. Anderson, 1 Edw. Ch. 380, 6 L. ed. 179; Carson v. Murray, 3 Paige, 483, 3 L. ed. 241.

An agreement not to take legal steps to avoid a fraudulent divorce is void. Although in most of the states a limit is fixed within which such suits may be brought. So all proceedings in fraud of the law to secure a divorce are void.*

When a separation has actually taken place or been fully decided on, and articles containing suitable provisions for the wife and children are fair and equal, and not the result of fraud or coercion, no principle of public policy is disturbed, and such agreement may be sustained."

'Loud v. Loud, 4 Bush, 457; Calkins v. Long, 22 Barb. 103; Sayles v. Sayles, 21 N. H. 312; Mercein v. People, 25 Wend. 61; Rex v. Mead, 1 Burr. 542; Rodney v. Chambers, 2 East, 283; Bettle v. Wilson, 14 Ohio, 257; Nurse v. Craig, 2 Bos. & P. 148; Todd v. Stoakes, 1 Salk. 116; Hindley v. Westmeath, 6 Barn. & C. 200; Westmeath v. Westmeath, 1 Dow. & C. 519; Garbut v. Bowling, 81 Mo. 214; Beach v. Beach, 2 Hill, 260; Jee v. Thur. loro, 2 Barn. & C. 547; Scholey v. Goodman, 1 Car. & P. 36, 1 Bing. 349; McDownell v. Murphy, 2 Fox & S. 279; Nichols v. Palmer, 5 Day, 47. Fox v. Davis, 113 Mass. 258; Walker v. Walker, 76 U. S. 9 Wall. 743, 19 L. ed. 814; Hunt v. Hunt, 4 DeG. F. & J. 221.

3 Comstock v. Adams, 23 Kan. 513.

4Everhart v. Puckett, 73 Ind. 409; Hunt v. Hunt, 47 L. J. Mat. Cas. 22, 23; Stilson v. Stilson, 46 Conn. 15; Cross v. Cross, 58 N. H. 373; Stoutenburg v. Lybrand, 13 Ohio St. 228; Phillips v. Thorp, 10 Or. 494; Adams v. Adams, 25 Minn. 72; Viser v. Bertrand, 14 Ark. 267.

"Squires v. Squires, 53 Vt. 211: Randall v. Randall, 37 Mich. 572; Compton v. Collinson, 2 Bro. Ch. 377; Worrall v. Jacob, 3 Meriv. 256; Jee v. Thurlow, 2 Barn. & C. 547; Jee v. Thurlow, 4 Dow. & R. 11; Blaker v. Cooper, 7 Serg. & R. 500; Hutton v. Hutton, 3 Pa. 100; Dillinger's App. 35 Pa. 357; Nichols v. Palmer, 5 Day, 47; Chapman v. Gray, 8 Ga. 341; Wells v. Stout, 9 Cal. 494; Gaines v. Poor, 3 Met. (Ky.) 503; Walker v. Walker, 76 U. S. 9 Wall. 743, 19 L. ed. 814.

Where they had actually separated, and were living apart at the time such agreement was made, the agreement is valid.'

A bond made to a wife's father to secure a separate maintenance for the wife, who had separated from her husband, the obligor, for their mutual comfort, to avoid the effect of jealousies and animosities that existed between them, is founded upon a legal and meritorious consideration."

So, it has been held that a woman may maintain an action on a promissory note given to her by her former husband after divorce from him, in pursuance of a written agreement conditioned upon the divorce being decreed, the note being given and accepted in lieu of alimony.'

27. Agreement for Separation and Support Supersedes Only in Part Marital Duties.-Such agreements take the place, as far as they extend, of the duties and obligations of the law in relation to husband and wife and their children. But they do not supersede or render inoperative other duties and obligations imposed by law upon husband and wife toward each other and toward their children. They are still husband and wife, but living apart from each other, and bound to observe all the other domestic duties resting upon them as husband and wife and parents, not provided for in the agreement of separation. Neither of them can marry nor commit adultery without incurring the consequences and the penalty prescribed by law to husbands and wives who commit those offenses. Hence we find numerous decisions of the courts in nearly all civilized countries holding that either husband or wife may, notwithstanding the existence of such agreement between them, maintain against the other the ordinary action for divorce, limited or absolute, according to the ground and the jurisdiction, and whether the ground therefor accrued before or after such agreement was entered into.*

1Magee v. Magee, 67 Barb. 100.

Page v. Trufant, 2 Mass. 159; Sumner v. Williams, 8 Mass. 200; Thacher v. Dinsmore, 5 Mass. 302.

3 Chapin v. Chapin, 135 Mass. 393; Bliss v. Negus, 8 Mass. 46. 4Stewart, Mar. & Div. § 191; Grant v. Budd. 30 L. T. N. S. 319; Charles worth v. Holt, 43 L. J. N. S. Exch. 25; Wright v. Miller, 1 Sandf. Ch. 103, 7 L. ed. 256; Carpenter v. Osborn, 3 Cent. Rep. 804, 102 N. Y. 559; Pettit v. Pettit, 10 Cent. Rep. 255, 107 N. Y. 667; Jee v. Thurlow, 2 Barn. & C. 547; Kremelberg v. Kremelberg, 52 Md. 553; Clark v. Fosdick, 6 L. R. A. 132, 118 N. Y. 7.

28. Trustee in Marital Separation not Essential, but Husband Treated as Trustee, and not Criminally Liable for Non-support.-A valid agreement may be made for separation between husband and wife and for an allowance for her support, where the separation is inevitable and immediate, without the intervention of a trustee; and in such case the husband himself will be treated as a trustee, and a husband who enters into an agreement with his wife for a separation and an allowance for her support, where the separation is inevitable and immediate, the deed of separation providing on behalf of the wife that he shall not visit her or enter any house where she may happen to be, and shall permit her to live separate from him, and to carry on business on her own account as if she were a feme sole,—is not liable to a criminal prosecution instituted by the wife herself to obtain an order for her maintenance, where there is no showing that the deed was fraudulently procured, or that the terms were unreasonable, or that its execution became null and void by the acts of the parties.'

A bond by a wife to her husband, with surety, to secure the husband against claims for her future support, executed while living apart and on settlement of a suit for separate maintenance, is not void as against public policy.*

While it is true that husband and wife cannot lawfully enter into an agreement for divorce, yet it is well settled that the amount of alimony which the husband is to pay to the wife, and the terms of the payment, and the length of time during which such payment is to continue, may be all arranged between them by con

sent.

In Buck v. Buck, 60 Ill. 242, the recitals of the decree showed that the whole question of alimony was fixed and settled by the agreement of the parties; and it was there held that it was competent for the husband to consent to the provisions of the decree, and that, having done so, he was bound by them, and could have no relief against his own voluntary agreement. Where the court has jurisdiction of the subject, the consent of the parties will authorize it to enter a valid decree or judgment in accordance 1Com. v. Richards, 131 Pa. 209.

9

Winn v. Sanford, 1 L. R. A. 512, 148 Mass. 39.

with their agreement. Where husband and wife Where husband and wife agree upon alimony, the court will embody their agreement upon that subject in its decree.'

§ 29. Contract Void when Immediate Separation not Contemplated. But where the instrument, no matter what the inducing cause may have been, does not contemplate an immediate separation, it is void, as it may operate as an inducement to the separation, and therefore against the policy of the law.'

An agreement, therefore, is of no effect unless the parties are separated when the agreement is entered into, or unless they separate afterwards in pursuance of the agreement, which has not been the promotive cause."

The validity of such agreements is recognized and enforced in numerous cases decided by the courts.*

§30. Contracts Regarding Property, but in Partial Restraint of Marriage.-Contracts concerning property, which operate in partial restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy and the economy and morality of domestic life, it will be held utterly void. But a contract where

'Stratton v. Stratton, 77 Me. 377; Fletcher v. Holmes, 25 Ind. 458; Carson v. Murray, 3 Paige, 483, 3 L. ed. 241; Miller v. Miller, 64 Me. 484; Storey v. Storey, 1 L. R. A. 320, 125 Ill. 608, 8 Am. St. Rep. 417.

Gould v. Gould, 29 How. Pr. 458, H. v. W. 3 Kay & J. 382; Durant v. Titley, 7 Price, 577; Florentine v. Wilson, Hill & D. 303; Friedman v. Bierman, 43 Hun, 390; Morgan v. Potter, 17 Hun, 405; Mercein v. People, 25 Wend. 77; Allen v. Affleck, 10 Daly, 512, 64 How. Pr. 381; Nurse v. Craig, 2 Bos. & P. 148.

Allen v. Affleck, 64 How. Pr. 384, 10 Daly, 516. See Calkins v. Long, 22

Barb. 106.

Carpenter v. Osborn, 3 Cent. Rep. 804, 102 N. Y. 552; Pettit v. Pettit, 10 Cent. Rep. 255, 107 N. Y. 677; Carson v. Murray, 3 Paige, 483, 3 L. ed. 241; Rogers v. Rogers, 4 Paige, 516, 3 L. ed. 541; Allen v. Affleck, 64 How. Pr. 380; Clark v. Fosdick, 6 L. R. A. 132, 118 N. Y. 7; Dupre v. Rein, 56 How. Pr. 230, 7 Abb. N. C. 256; Heyer v. Burger, 1 Hoffm. Ch. 6, 6 L.

ed. 1045.

Allen v. Jackson, L. R. 1 Ch. Div. 399; Jones v. Jones, L. R. 1 Q. B. Div. 279; Hartley v. Rice, 10 East, 22; Crawford v. Russell, 62 Barb. 92; Mandlebaum v. McDonell, 29 Mich. 78; Key v. Bradshaw, 2 Vern. 102; Love v. Peers, 4 Burr. 2225; Sterling v. Sinnickson, 5 N. J. L. 756; Williams v. Corden, 13 Mo. 211; Chalfant v. Payton, 91 Ind. 202; Bellairs v. Bellairs, L. R. 18 Eq. 510.

by a husband agrees to pay his divorced wife a specified monthly sum for so long a time as she does not marry again and shall remain single and unmarried, is not void as in restraint of marriage.'

A condition in a will which holds out to the legatee an inducement to live separate and apart from her husband is void as against public policy. Thus, in Brown v. Peck, 1 Eden, 140, the will provided that the legatee should be paid two pounds per month if she lived with her husband, but if she lived from him, and with her mother, she should be paid five pounds a month.

In Wren v. Bradley, 2 DeG. & S. 49, the bequest was "to my daughter, Ann Jefferies Wren, the wife of Abraham Wren, in case she shall be living apart from her said husband, the said Abraham Wren, and shall continue so to do during the lifetime of my said wife, an annuity of £30, by equal quarterly payments, the first of such payments to be made at the expiration of three calendar months next after my decease. And I do hereby further direct that, if at any time the said Ann Jefferies Wren shall cohabit with the said Abraham Wren, the said annuity hereinbefore given to her shall, during the time she shall so cohabit, abso lutely cease and determine."

In Conrad v. Long, 33 Mich. 79, the clause of the will was as follows: "To my brother, Frederick S. Conrad, I give and bequeath the one half so remaining, and the other half I give and bequeath to my sister, Elizabeth Long, upon this condition:—if at any time subsequent she should conclude not to live with her present husband, Henry Long, as his wife. But if she continue so to live as the wife of the said Henry Long until her death, then, in that case, I give and bequeath all my property, real and personal, remaining after the burial of my mother aforesaid, to my aforesaid brother, Frederick S. Conrad."

In all of these cases the conditions quoted were very properly held to have been void. The reason is apparent. They held out a direct inducement for the legatees to live separate and apart from their husbands. The result may have been to bring about the separation and violation of their marital duties and obligations without any just cause, and in an unlawful manner. This was not 27 Pac. Rep. 85.

'Jones v. Jones, Colo.