Birch v. Anthony

• Decision Date: 30 November 1899
• Parties: BIRCH v. ANTHONY et al.
• Court: Georgia Supreme Court

34 S.E. 561

109 Ga. 349

BIRCH v. ANTHONY et al.

Supreme Court of Georgia

November 30, 1899

Syllabus by the Court.

A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation existing between them, is contrary to public policy, illegal, and void, and will not, after the husband's death, bar the widow's right to a year's support and dower.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Suit by W. B. Birch, executor of E. R. Anthony, against Belle Anthony and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Hill Harris & Birch and W. Dessau, for plaintiff in error.

Harris Thomas & Glawson, for defendants in error.

FISH J.

W. B Birch, as executor of the will of E. R. Anthony, brought his equitable petition against Mrs. Belle Anthony, the widow of his testator, and others, in which he sought, by injunction, to prevent Mrs. Anthony from obtaining a year's support and dower from the estate of her deceased husband, upon the ground that she had entered into the following contract with her husband:

"Having positively determined to leave my husband E. R. Anthony, and deny him all marital rights whatever, I hereby in consideration of four hundred dollars ($400) this day paid me by him I relinquish all claims of any kind whatever I have on him as wife.

"Witness my hand and seal this day of 1894 [L. S.]

"Legal

"Providing this is a divorce granted said Anthony by 1st of April 1895.

"Mrs. F. B. Anthony

"David Milne

"Isabella Milne."

It appeared from the evidence that David Milne and Isabella signed the contract as witnesses.

The trial judge refused to grant the injunction, and the executor excepted.

While there were several points made in the case, we think it necessary to deal with only one of them, and that is whether the contract above set forth barred the widow's rights to a year's support and dower. It was contended by counsel for plaintiff in error that the $400 mentioned in the contract was paid, upon the separation between Anthony and his wife, as permanent alimony, and that she was therefore not entitled to a year's support or to dower, as, under our law, in a case of voluntary separation the husband may voluntarily, by deed, make an adequate provision for the support and maintenance of his wife, and thus bar her right to permanent alimony, and any further interest in his estate in her right as wife. This contention might possibly be sound, but for a part of the contract which, in our opinion renders the whole of it illegal and void. Whatever else may have been contemplated by the parties to this contract, it manifestly appears that it was their intention to promote a dissolution of the marriage relation existing between them. By reference to the contract, it will be seen that it was apparently complete and ready to be signed when the condition was added, providing, in effect, that it should be legal if a divorce should be granted to the husband on or before a fixed date. This provision renders the whole contract illegal, as it is well settled that a contract intended to promote a dissolution of marriage is...