Blank v. Nohl

• Decision Date: 14 November 1892
• Citation: 112 Mo. 159,20 S.W. 477
• Parties: BLANK v. NOHL.
• Court: Missouri Supreme Court

20 S.W. 477

112 Mo. 159

BLANK v. NOHL.

Supreme Court of Missouri.

November 14, 1892.

HUSBAND AND WIFE — DIVORCE — AGREEMENT TO FACILITATE DIVORCE — VALIDITY.

A husband, against whom suit had been brought for divorce, obtained a decree in his own favor. He then agreed that, if the wife would not move for a new trial, he would furnish her a permanent support. This agreement, though made after the decree, and without any previous understanding, was still within the time allowed for moving for a new trial. Held void, as an agreement made to promote or facilitate divorce. Barclay, J., dissenting. 19 S. W. Rep. 65, affirmed.

In banc. Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Proceeding by Helena Blank against Francis Nohl, administrator of Oscar Blank. Judgment for defendant. Plaintiff appeals. Affirmed.

Edward E. A. B. Garesche and H. S. Priest, for appellant. Kehr & Tittman, for respondent.

BLACK, J.

This was a proceeding commenced in the St. Louis probate court by Helena Blank against Francis Nohl as administrator of the estate of Oscar Blank, to obtain the allowance of a demand amounting to over $9,000. The demand is founded upon the following contract, signed by Helena Blank and by Oscar Blank, dated the 9th March, 1886: "Helena Blank, Plaintiff, vs. Oscar Blank, Defendant. In the circuit court of the city of St. Louis. No. 52,206. The above cause having been heard by the court upon the pleadings and proofs in the cause, and a decree of divorce granted to defendant and against plaintiff, defendant, Oscar Blank, mindful of the marital relations which have existed between themselves, in consideration that she doth forego making a motion for a new trial, which would be futile in any advantage to her, while productive to him of further annoyance and expense, doth covenant to and with said Helena Blank that on the first day of every month, beginning with the first day of the month of April now next ensuing, he will pay to her the sum of seventy-five dollars, and a like sum of seventy-five dollars on the first day of every month thereafter, so long as she, the said Helena, shall live, and whether she, the said Helena, remain married or unmarried. And it is agreed between the parties that, inasmuch as the same is intended to be for her maintenance and support, the amount so to be paid to her shall never be subject to the demands of any of her creditors, nor shall it ever be anticipated by her assignment, and payable to her only upon her individual receipt; nor can it at any time or under any circumstances be compounded or commuted for a fixed sum, as other annuities are, though by mutual concurrence of said Helena and of said Oscar Blank, his heirs, executors, or administrators, for a valuable consideration, it may be released." The agreement goes on to provide that Oscar Blank shall pay the costs of the suit, but no attorneys' fees beyond what he had paid; that he will turn over to Helena Blank one bond of the value of $1,000; and it is then further provided "that the said Oscar will deliver to her, her letters during 1879, by her written to F. L. Schmidt, and the translations thereof, read at the trial in the above-entitled cause, which letters he about a month ago obtained of said Schmidt; that while he may retain them until, by the expiration of the term, said Helena cannot, by a motion for new trial, avoid the advantage he thus gained over her, yet that upon the execution of these presents these letters, sixteen in number, and their translations as so read in court, and her photograph, as shown in court at the trial in explanation of one of these letters, shall be inclosed in suitable envelopes or coverings, sealed with a seal, to be left in the possession of ___ her attorney, while the papers themselves shall remain in possession of ___, attorney of said Oscar, but as escrows, to insure their delivery on the first day of the next ensuing April term of said circuit court to said Helena, provided she have complied with her part of this contract; the letters and papers so mentioned to be so inclosed and sealed to insure that no publicity of their contents be had. In consideration whereof the said Helena covenants to and with said Oscar that she will forego her right to move for a new trial in the above-entitled cause." Dr. Oscar Blank made the payments specified in the contract from the date thereof down to his death, in June, 1887; and the defendant, as administrator of his estate, continued to pay the plaintiff the $75 per month for about one year thereafter. The probate court rejected the demand, and so did the circuit court, and she sued out this appeal.

The divorce suit of Helena Blank against Oscar Blank, mentioned in the foregoing agreement, was commenced in 1879. She alleged in her petition that the defendant had assaulted her; that he had threatened to kill her; that he had charged her with infidelity; and that he had been guilty of various other indignities. The defendant filed answer and cross bill. In the cross bill he charged her with repeated acts of adultery with F. L. Schmidt. The parties prepared for trial on these pleadings, by each causing some 10 or 11 witnesses to be subpœnaed for the 4th March, 1880, the day on which the cause was set down for trial. Instead of going to trial on that day, leave was granted to defendant to withdraw his answer and cross bill from the files, and amend the same, and the like leave was granted to the plaintiff to withdraw her reply. On the next day the defendant filed an amended answer and cross bill, and the plaintiff at the same time filed a reply thereto. This amended cross bill, instead of charging the plaintiff with adultery, alleged that she had neglected the society of the defendant for that of Schmidt, and had permitted the latter undue familiarities. On the 8th of the same month, the court heard the case, and awarded the defendant a decree of divorce. The above contract was executed on the following day, the 9th March, 1880. There had been a previous divorce suit between these parties, on the hearing of which the court dismissed the bill and cross bill.

On the trial of the present case in the circuit court, the defendant administrator called to the witness stand the attorney who represented Oscar Blank in the divorce suit mentioned in the contract. This witness says: "I conferred with the attorney for the plaintiff in the divorce suit, upon the subject incorporated in the agreement, before the hearing of that suit. The defendant had obtained certain letters which were very damaging, and I was satisfied that I could prove they were written by Mrs. Blank. I said to the attorney for the plaintiff: `There is no show for you in this case. You might as well let judgment go. Dr. Blank has no unkind feeling towards his wife, and he is willing to settle on her $75 per month.' The attorney for plaintiff rejected the proposition, and the letters were returned to me, and we went to trial. The proposition was, if no fight was made, he would settle on her $75 per month after the divorce, but the proposition was rejected. The arrangement about $75 per month had been mooted and bruited for...