Dower v. Dower

The plaintiff and the defendant were married a number of years ago; but, because of the cruel treatment of the husband, they were, on February 9, 1897, living separate and apart from each other. On that day they entered into a written contract setting forth that differences had arisen between them which rendered it undesirable that they should live together, and that they had, in fact, theretofore separated. In view of these circumstances they agreed that they should “continue to live separate and apart from each other, and that neither will molest, visit, disturb, or in any way interfere with the other while thus living apart.” The husband promised to pay the wife $300 a 'year until his or her death, or until she should receive the total amount of $4,000. On her part the wife promised not to create any debt or liability against the husband, and to indemnify him for any that she might theretofore have incurred. She further agreed that when she had received $4,000 she would, upon request, release her inchoate right of dower in any of her husband’s real estate;, and that in the event of the sale, prior to that time, of any part thereof, she would release her right of dower therein upon receiving its value, such sum so paid to be applied in reduction of the above-mentioned $4,000. The contract then contained the provision that, taking into account all the circumstances of the parties, the above provisions were ample and sufficient, and that the same were accepted by the wife as sufficient. for her support and maintenance, and in lieu of all dower rights or share in the property or estate of the husband. The husband seems to have paid the amount agreed upon until April 1, 1900, but in the

Under section 21 of the domestic relations law (Laws 1896, c_ 272) it is provided that:

‘‘A married woman has all the rights in respect to property, real or personal, and the acquisition, use, enjoyment and disposition thereof, and to-make contracts in respect thereto with any person including her husband, * * * as if she were unmarried; but a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.”

The question for decision, therefore, is whether the agreement hr question is a contract to alter or dissolve the marriage, or whether it is a contract to relieve the husband from his liability to support his wife. It does not seem to me that the contract is one to alter or dissolve the marriage. The wife had left the husband, as, under the evidence in the case, she was fully justified in doing, and was living apart from him. The agreement simply recognized this condition of affairs, and recognized the right of the wife to be freed from disturbance and molestation while the separation continued. The mutual promise that they should continue to live apart conferred no new rights upon the wife and deprived the husband of none. His cruelty might be condoned, it is true, but the contract did nothing to prevent such condon.ation. Nor do I think that the contract relieved the husband from his liability to support the wife;. On the other hand, it in fact recognized his obligation to furnish her such support, and simply regulated the amount that he should pay her therefor. The husband and wife agreed together what, under all the circumstances, should be sufficient for this purpose, and agreed that it should be paid her in a certain specified manner, and to a certain specified amount. So far as appears, this arrangement was in all respects fair and adequate. The case of Lawson v. Lawson, 56 App. Div. 535 , 67 N. Y. Supp. 356 , seems to support these views. My attention has also been called to Poillon v. Poillon, 49. App. Div. 341, 63 N. Y. Supp. 301 . There a similar contract was made between a husband and wife, who were living together, providing for payments to the wife and for a future separation. It was held that this contract was void as against public policy, and that no recovery could be had upon it. It could only be upheld in equity in certain cases where there was the intervention of a trustee. The plaintiff claimed that this well-settled rule of law had been changed by the section of the domestic relations law, above quoted. The court said, however, that it needed “no discussion to show that this contract is essentially one to alter the marriage relation. It relieves the parties from the duty of living together which the marriage relation imposes upon them, and tends to relieve the husband from the support of his wife, and, so far as it had these ends in view, it is directly contrary to the section above. It is sufficient,” the court continued, “for the disposition of this case to say that section 21, above cited, does not enlarge the power of the

Judgment for plaintiff.