Bowers v. Hutchinson

• Decision Date: 14 October 1899
• Citation: 53 S.W. 399,67 Ark. 15
• Parties: BOWERS v. HUTCHINSON
• Court: Arkansas Supreme Court

53 S.W. 399

67 Ark. 15

BOWERS v. HUTCHINSON

Supreme Court of Arkansas

October 14, 1899

Appeal from Arkansas Circuit Court James S. Thomas, Judge.

Reversed.

P. C Dooley, for appellants.

Appellee having enjoyed all the benefits of the contract, should not be suffered to repudiate it. 37 Am. Dec. 438. Contracts of separation are at the present time enforced in both England and America, without the intervention of a trustee. Macq. Hus. & Wife, 324, 329; Schouler, Dom. Rel. 471, 473; 3 Vesey 352; Bright, Hus. & Wife, 306; Schoul. M. & D. 474; 37 Mich. 563; 9 Wall. 743; Bish. M. & D. § 1266; 5 H. L. Cas. 59; 113 Mass. 255; 41 Barb. 92; Tiff. Dom. Rel. 168, 169, 170; 24 A. 926; Bish. Cont. § 469, 490; Bish. M. D. & Sep. §§ 1264, 1265, 1278, 1286; 12 Ch. Div. 605; 18 Ch. Div. 670; 113 Mass. 255; 3 Metc. 503; 18 Am. Rep. 476; 54 Pa.St. 110; S. C. 42 Am. 271; 8 Ga. 341; 3 Pa.St. 100; 37 Mich. 563; 35 Mich. 110; 107 Pa.St. 18; 89 Am. Dec. 172; 113 Mass. 257; 22 Barb. 97; 41 Barb. 92; 37 N.Y. 621; 8 W. & S. 102; 1 Blackf. 97; 14 Ohio 257; 7 Johns. 57; 34 Mich. 342; 15 Ala. 311; 1 B. Mon. 282; 9 Humph. 477; 35 Miss. 638; 17 Mo. 564; 7 Price, 577; 11 Ves. 526; 2 Brown, Ch. 377; 3 Meriv. 266; 2 B. & C. 547; 4 D. & R. 11; 7 Serg. & R. 500; 3 Pa.St. 100; 35 Pa.St. 357; 5 Day, 47; 8 Johns, 73; 2 Wend. 422; 3 Paige, 483; 8 Ga. 341; 9 Cal. 494; 3 Met. 503; 9 Wall. 743; 10 Pet. 583; 16 Oh. St. 527; 14 Ind. 505; 15 Mich. 447; 44 N.E. 20; 4 De G., F. & J. 221; 113 Mass. 255; 77 Ill. 633; 54 Wis. 554; 34 Tex. 536; 8 Bush, 262; 25 Iowa 350; 4 Bush, 453; 22 Barb. 97; 14 Ohio 257; 13 Rich. (S. Car.) 157; 41 Barb. 92; 1 Blackf. 97; 4 Greene, 126; 3 Metc. 503; 39 N.Y. 621; 1 Phila. 561; 8 W. & S. 102; 3 Pa.St. 100; 10 Oh. St. 247; 35 Pa.St. 357. As to powers and rights of married women in this state, see: 47 Ark. 175; 52 Ark. 234; 47 Ark. 235; 44 Ark. 154; 45 Ark. 111; 47 Ark. 111; 51 Ark. 235; 62 Ark. 31 Const. 1874, art. 9, § 7; Sand. & H. Dig., § 4945; 47 Ark. 175; 60 Ark. 70; 56 Ark. 243; 46 Ark. 542; 55 Ark. 85; 55 Ark. 116; 52 Ark. 234; 51 Ark. 390; 1 Kent, 167; 89 Am. Dec. 547; Big. Est. 278; 125 Mass. 25; 43 Am. Dec. 427; 3 Neb. 344; 58 Am. Dec. 112; 6 How, 238; 1 Story, Eq. 385; 1 Pom. Eq. 814. A married woman is estopped from denying her acts, or the consequences thereof, the same as a femme sole. 50 Mich. 189; 2 Bish. Mar. Wom. § 490; Big Est. 513, 488; 30 Ala. 382; 21 Pa.St. 436; 2 Pom. Eq. § 698; 94 U.S. 22; 50 Ark. 42; 10 S.E. 95; 52 F. 631; 50 Ark. 42.

M. J. Manning and J. P. Lee, for appellee.

A release of dower to the husband is a nullity. 30 Ark. 17; 31 Ark. 678; 13 Ark. 423; 53 Ark. 281; 3 Paige, 503; 14 Me. 432; 60 Ark. 474; 86 Ill. 547; 76 Tex. 533; 85 Ala. 342; 101 Ill. 242; 102 Ind. 173; 40 Md. 387; 38 Ind. 221; 25 N.Y. 328; 32 N.Y. 423; 14 Barb. 531; 56 Ark. 297; 26 N.E. 128; 60 Ark. 174; 2 Scrib. Dow. 303-313, 288; 3 N.E. 19. A widow can not convey her dower before it is assigned and alloted to her. 21 Ark. 62; 21 Ark. 347; 31 Ark. 334; 3 N.E. 19. The husband was already legally bound to pay the sum advanced to the wife. Hence it was not a valid consideration for the contract or conveyance. 52 Ark. 174. Estoppel does not operate on a matter as to which the party could not contract. 47 Ark. 354; 37 Ark. 555; Id. 304; 15 F. 707. The transaction, by reason of the confidential and fiduciary relations existing between the parties, is presumably invalid in equity. 2 Pom. Eq. §§ 955, 963.

Benj. J. Gifford, for appellee.

The former doctrine of the courts did not favor such agreements as the one at bar. Schouler, Dom. Rel. 190. The later rule is that if there was a fair division of property, and the wife has all the courts would have awarded her, the settlement will not be disturbed. Bish. Sep. 1280; Schoul, Hus. & Wife, 329; 135 Ill. 457. The presumption is against the validity of such agreements, and the one relying upon such a contract of the wife must show that she had authority to do so, and that the husband acted in good faith. 58 Mich. 1; 75 N.Y. 91; 92 Pa.St. 267; 71 N.Y. 154; 57 Pa.St. 57; 9 How. 55; Kerr, Fraud and Mist. 400; 9 2 Pa.St. 428; 86 Pa.St. 512; Story, Eq. Jur., § 308; Bisph. Eq., § 231; Schouler, Hus. & Wife, 473; Atherly, Mar. Sett. 162; Tiff. Dom. Rel. 171; Bish. Mar. and Div. 474; Macq., H. and W. 300; Sch. Post Nup. Agreem. 190; 112 Ill. 229; 40 Mich. 473; Schouler, Dom. Rel. 190, 191; Bish. M. and D. 1280; 144 Ill. 436; 104 Ill. 1222. While all post nuptial agreements between husband and wife are void in law, those which are not inequitable may be enforced in equity. 9 Wall. 743; 45 Ala. 264; 113 Mass. 255; 54 Pa.St. 110; 3 Pa.St. 100; 1 Blackf. 97; 14 Ind. 505; 145 Ind. 59; 37 Mich. 563; 37 Mich. 326; 135 Ill. 457; 144 Ill. 436.

BATTLE J., RIDDICK, J., did not participate.

OPINION

BATTLE, J.

On the 7th day of June, 1876, John H. Hutchinson and Jennie M. Martindale were married. On the 17th day of January, 1897, John H. Hutchinson departed this life intestate, at his late residence in Arkansas county, in this state, leaving Jennie M. Hutchinson, his widow, surviving, but no children. He died seized and possessed of real and personal property. On the 19th of January, 1897, Edward Bowers was duly appointed his administrator; and on the 14th of April, 1897, Jennie M. Hutchinson, his widow, applied to the Arkansas probate court for an assignment of her dower in his estate. The administrator and heirs of the deceased answered, and pleaded in bar of her right to dower a deed, which was duly executed and acknowledged by the petitioner and the deceased in his lifetime, and is in the words and figures following:

"This deed of separation, or articles of agreement, made, entered into, and executed at DeWitt, in the county of Arkansas, this 13th day of September, A. D., 1882, by and between John H Hutchinson, M. D., as party of the first part, and Mrs. Jennie M. Hutchinson, party hereto of the second part, witnesseth:

"That said parties, with their mutual consent and by agreement, were lawfully joined in wedlock, on the 7th day of June, 1876, at the city of Memphis, Tennessee, and then came to the residence and home of said first party in said county of Arkansas, where they have continued to reside as husband and wife, and whereas, the said first party at the time of such marriage engaged in the practice of medicine in said county in Arkansas, and is still engaged in such practice, from which, as well as from the business of stock raising and farming, he has supported and maintained his said wife and himself comfortably, and has at all times furnished her with all things and articles necessary for her health, comfort, enjoyment and proper maintenance, but the said second party being dissatisfied with and unwilling to continue to reside in said county of Arkansas, and being desirous of residing with a relative at ; and whereas, the said first party is not in a condition to abandon his said home, practice and business already acquired and established in said county of Arkansas, and remove to and locate in some other state or kingdom; and whereas, said first party is unwilling to exercise his authority as a husband by requiring his wife, said second party, to permanently reside at his said home and domicile in said county of Arkansas, contrary to her desire and expressed wish, therefore said parties mutually covenant and agree to and with each other as follows:

"The said John H. Hutchinson covenants with said Mrs. Jennie M. Hutchinson, (who was prior to said marriage Miss Jennie M. Martindale), that she shall have full liberty and authority, and he hereby agrees that she may from this date have full liberty and authority, to reside where she pleases and desires, away from and free from the direction and control of said first party as her said husband, with the full and distinct understanding that she may select the place of residence, and change the same from time to time as freely as she could do as a single woman.

"The said first party, in consideration of the premises, and of the several covenants of said second party hereinafter expressed, hereby further agrees, promise and covenants with said second party to pay her, this day, the sum of $ 50 cash in hand, and to pay her the further sum of three hundred dollars on or before the first day of January, 1883, and also the sum of one hundred dollars on or before the first day of January, 1884, and also the sum of one hundred dollars on or before the first day of January, 1885, and also the sum of one hundred dollars on or before the first day of January, 1886, which said sums are not to bear any rate of interest, but are to be paid, as stated, to said second party, or her designated agent, at the town of DeWitt, in said county of Arkansas, on the first days of January, 1883, 1884, 1885 and 1886, respectively; and said cash and said payments to be made as aforesaid are in full satisfaction of all the claims upon, or right of support and maintenance, by, said first party of the second part, as well as in release and satisfaction of whatever rights or claims or interest, whether of dower or otherwise, which she has acquired, or might acquire, in and to the estate and property of said first party by virtue of their relations, situations, and position toward each other by virtue of their said marriage.

"The said first party further covenants that he will not attempt to control or set up any claim, interest in, or title to such estate and property as the said second party may hereinafter acquire, but agrees and covenants that she may sell and dispose of the same, or bequeath it, or any party thereof, when and to whom she chooses, without let, hindrance, declaration or control from said first party.

"The said second party, Mrs. Jennie M. Hutchinson, in...