Garrett v. Kirtley

• Citation: 97 W.Va. 484
• Decision Date: 11 November 1924
• Docket Number: No. 5070.,5070.
• Parties: Thomas H. Garrett v. T. E. Kirtley, Admr., Etc., et al..
• Court: Supreme Court of West Virginia

97 W.Va. 484

Thomas H. Garrett

v.T. E. Kirtley, Admr., Etc., et al..

No. 5070.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1924.

Decided November 11, 1924.

Husband and Wife Reconciliation and Agreement to Resume Cohabitation Held Not to Warrant Cancellation of Separation Contract on Wife's Death Before Resumption of Cohabitation.

While living separate and apart, a husband and wife execute, acknowledge and record a contract whereby the husband in consideration of bank stocks delivered, and in consideration of the wife's release of claims of every character against his real and personal property then owned or thereafter acquired, and in consideration of release from his duty to support and maintain her, on his part releases to her and her heirs all claims he has upon her real and personal property then owned or thereafter acquired. About eighteen months thereafter they effect a reconciliation, and agree to begin to live together as man and wife in the near future. They do not live or cohabit together but intend to do so, pending which understanding the wife died. These facts and circumstances will not warrant a court of equity in decreeing a cancellation of the contract.

Appeal from Circuit Court, Cabel County.

Suit by Thomas II. Garrett against T. E. Kirtley, administrator, etc., and others. Decree of dismissal and plaintiff appeals.

Affirmed.

Warth & Peyton, for appellant.

Simms & Stoker and George S. Wallace, for appellees.

Lively, Judge:

The plaintiff, Thomas II. Garrett, and Mary Alva Kirtley were married in the year 1899 at Hurricane, West Virginia; later moved to Ohio where they accumulated some money in the millinery business, and in 1909 came to Huntington, West Virginia, where they had purchased various city lots, three of which were deeded to the wife, Mary Alva Kirtley. A dwelling was erected on one of the lots deeded to her on Fourth Avenue, where they resided until some time prior to September 1919, when they separated. Plaintiff had been engaged in the real estate business in Huntington. The wife continued to reside in the house on Fourth Avenue. Being in ill health, she went to Cincinnati, Ohio, early in 1921 and remained there under medical treatment for about six months, when she returned to Huntington, West Virginia, in May or June. In July she visited friends in Charlottesville, Virginia, returning to Huntington in September of that year. On December 18th, after a short illness followed by a surgical operation, she died intestate.

Plaintiff, the husband, instituted this suit against her personal representative, heirs and distributees, claiming curtesy in the real estate, and claiming the personal estate under the statute of descents and distribution. The bill also claims that plaintiff is entitled to one-half of the real estate in fee because he furnished one-half of the purchase money, the wife holding the legal title as trustee for him to that extent. This latter contention seems to have been abandoned; and the controversy is narrowed down to his claim of curtesy, and right to the personal estate. Defendants answered and set up as a bar to plaintiff's claims a contract between plaintiff and his decedent wife duly acknowledged and recorded, dated September 19, 1919, whereby for a valuable consideration he forever relinquished any and all claims to her real and personal estate then owned by her or thereafter owned by her. To avoid this contract plaintiff asserts that it was a separation agreement, void as against public policy, and if not void, is unequitable and unfair, and should not be enforced in equity; and besides plaintiff and his deceased wife became reconciled to each other and their reconciliation abrogated this contract. The main contention is that the contract, even if valid, was abrogated and rescinded by the subsequent reconciliation. The circuit court found no equity in the bill and dismissed it. Plaintiff appeals.

Was there a reconciliation and resumption of the martial relations which will justify a coourt in finding that the parties intended thereby to revoke and annul the contract? Waiving the objection to the husband's testimony as incompetent, we find that while the wife was in Cincinnati and perhaps before that time efforts had been begun through mutual friends for a reconciliation and resumption of the marital status. The wife appeared to be willing to forgive and forget and desired to go back to and live with her husband. Her letters to him from Cincinnati so indicate. Prior to that time she had deeded to one of her relatives her real estate, fearing threatened litigation from the wife of the man who apparently was the cause of the estrangement and separation; and it was thought best to keep secret the reconciliation until such time as the title to the property was deeded back to her. When she returned to Huntington, their plans were discussed and it appears to have been the understanding that after her husband had completed an apartment house he was then building, and his business was arranged, they would resume their marital relations and would go to Florida for the winter. While in Huntington she lived at her home at 210 Fourth Avenue, and he lived at his apartments about ten blocks away. She visited him at his office and sometimes at his apartment, but he never went to her home. There is no evidence that they cohabited together after their separation. There is evidence that he hesitated about becoming reconciled. That he did become reconciled and intended to live with her after the beginning of the year 1923 is found in his evidence alone. There is evidence that the day before she took violently ill, (about a week before her death), she declared that he had not spoken to her since she had returned, and she intended never to have anything more to do with him; and that on her death bed she said that she had made a will which she had destroyed because she wanted her property divided more equally, and she wanted him to have something. She did not make another will. This evidence relating to her displeasure with him, and that she wanted him to have something out of her estate, comes from a niece, Mrs. Mollie Sanford, one of her heirs and distributees, and who resided with her in her home after the separation and until the time of her death. No objection or exception appears to have been taken to her evidence. It is reasonably clear that the husband and wife intended to live together as man and wife at a future period. While it does not appear when the property was deeded back to her from her relative, it does appear that this was not the only reason that prevented the resumption of married life. Just why the actual resumption was delayed does not appear, unless it was to meet the business convenience of the husband. So far as the immediate relatives of the parties and the general public knew, there had been no reconciliation, and it is clear that there had been no resumption of conjugal relations at the time of her death. It will be observed that no reference is made to the contract during the negotiations for reconciliation or to the status of her property. In one of her letters she says that she had her property rented for $330.00 per month and that they had both worked hard for what they had and the income was sufficient and that they should spend and enjoy it together.

Plaintiff takes the position that the contract of September 19, 1919, is a separation agreement and is void as against public policy. We cannot see that the contract is a separation agreement. The parties had already separated and were living separate and apart. The contract is a mutual adjustment and settlement of their respective property rights. It recites the fact that they are living separate and apart and that they are desirous of adjusting and settling their respective marital rights of property, and all other rights of property which they may have...