Whitney v. Whitney

— At common law executory contracts between husband and wife were absolutely void, and no instance of their enforcement by the courts can be found among the reported cases in this state or in England. It is true that courts of equity have upheld what are termed “deeds of separation,” by which, through the medium of some third party, acting as a trustee,' provision is made by a husband for the support of his wife, although in doing so they have taken occasion to say that such contracts are at variance with the policy of the law, and it was remarked by Lord Chief Justice Denman, in Jones v. Waite, 5 Bing. N. C. 341, that “ many oi the judges gave effect to them for any purpose * * * with reluctance, and would have paused if the question had been new.” It will be observed, also, that even a court of equity will not interfere to enforce an agreement of this character which is founded upon no other consideration than a mere voluntary separation of the parties; while in a court of law, until a comparatively-recent period, no effect could be given to it, whatever might have been the consideration. Beach v. Beach, 2 Hill, 260 ; Griffin v Banks, 37 N. Y. 621

It is insisted, however, that the common-law rule has been so far modified by statutory enactment that a contract like the one sued upon may now be entered into by husband and wife, and that, when thus entered into, it will be enforced by the courts. That the tendency of legislation in this state for the past fifty years has been to remove the common-law restrictions which hampered a married woman in the enjoyment of her property and personal rights is a fact well known by every one; and in order that she might be placed in the exact position of a feme sole, the legislature has recently enacted that she “ may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried ” Laws 1892, c. 594. It is difficult to see how less than this could be accorded married women in view of preceding legislation, but it will be noticed that, in this removal of the “ last barrier,” the legislature was careful to limit its action to such rights and liabilities as are strictly iegal m their nature, and therefore we find embodied in the act in question this provision ;

“But nothing herein contained shall be construed to authorize the husband and wife to enter Into any contract-by which the marriage relation shall be altered or dissolved, or to relieve the husband from his liability to support his wife ”

Now, the contract which lies at the foundation of this action is one which very materially alters the marital relations of the parties. By its terms the husband and wife have voluntarily separated, and are hereafterto live as strangers to each other. In consideration of this practical dissolution of the marriage tie, the husband agrees to pay the wife a certain sum weekly, and, he failing to fulfill the obligation thus assumed, she comes into a court of law and invokes its aid in the enforcement of the contract. Can anything more subversive of social order, sound public policy, or good morals be" imagined? To give to the