Harris v. Harris
| Decision Date | 11 April 1947 |
| Docket Number | (CC 716) |
| Citation | 130 W.Va. 100 |
| Parties | Garnett Lee Harris v. Grace Harris, et al. |
| Court | West Virginia Supreme Court |
A written agreement, upon sufficient consideration, certain and definite and not inequitable, entered into in good faith between husband and wife who are then separated and subsequently divorced, which provides that in the event of his death all his property, after payment of his debts, shall be divided equally between the wife and two children, properly construed, is an agreement by him to will his property to them and is valid and enforceable in equity.
When a husband, obligated by a valid agreement to will all his property to his wife and two children, subsequently obtains a divorce from her, marries another woman who sur- vives him as his widow, and dies intestate and without disposing of his property, his widow is not entitled to dower in the real estate held by him at the time of his death.
Certified from Circuit Court, Mercer County.
Suit in equity by Garnett Lee Harris against Grace Harris and others for the assignment of dower to the plaintiff in the real estate of her deceased husband. The demurrer of the defendants to the bill of complaint was sustained and the demurrer of the plaintiff to the answer and the amended and supplemental answer was overruled, and on joint application of the parties the circuit court certified its rulings on the demurrers to the Supreme Court of Appeals.
Rulings affirmed; case remanded. Kenna, Judge, concurring:
Ira M. Smith, for plaintiff.
Burton, Sanders & Shaffer, for defendants. Haymond, Judge:
This suit in equity was instituted in the Circuit Court of Mercer County by Garnett Lee Harris, as plaintiff, against Grace Harris, James G. Harris and Aster G. Harris, an infant, as defendants, for the assignment of dower to the plaintiff in the real estate of her deceased husband, Gust D. Harris. To the bill of complaint of the plaintiff the defendants filed a demurrer and an answer and later an amended and supplemental answer. The plaintiff filed a demurrer to the answers of the defendants. The demurrer of the defendants to the bill of complaint was sustained. The demurrer of the plaintiff to the answer and the amended and supplemental answer was overruled. On joint application of the parties, the Circuit Court certified its rulings on the demurrers to this Court.
The plaintiff is the widow of Gust D. Harris, who died intestate in Mercer County, West Virginia, on June 24, 1946. The defendant, Grace Harris, is the divorced former wife of Gust D. Harris, and the defendants, James G. Harris and Aster G. Harris, are the children of Grace Harris and Gust D. Harris, and his only heirs at law.
The pleadings disclose these material facts. Gust D. Harris and the defendant Grace Harris were married April 4, 1924, and they lived together as husband and wife until a short time prior to March 28, 1941. Marital differences having arisen between them, Gust D. Harris, on March 28, 1941, instituted a suit for divorce against Grace Harris in the Circuit Court of Mercer County. Grace Harris made no appearance or defense in the suit and by decree entered June 3, 1941, Gust D. Harris was granted an absolute divorce. That decree made no provision for the maintenance and the support of Grace Harris or the two children of the marriage and automatically barred her right of dower in the real estate of Gust D. Harris.
At the time of the institution of the suit for divorce a written contract was entered into between Gust D. Harris, as party of the first part, and Grace Harris, as party of the second part. The contract, a copy of which is exhibited with the bill of complaint, recites that the parties, though husband and wife, were separated; that the husband had instituted suit for divorce against the wife, and that he desired to make provision for the maintenance and the support of his wife and his two children. It then states that the husband should furnish to Grace Harris four rooms in the building where she and the children were then residing, as their home, and supply them with light, heat and water; that he would pay to Grace Harris thirty dollars a month, to commence on April 1, 1941, and to continue while the wife should remain unmarried, and would also provide books, school supplies and necessary medical services for his children. It further states that, in the event of the sale of the property in which his wife and children were then living, the husband would provide a suitable home for them and that the wife should retain the custody of the children subject to the right of the husband to visit them at reasonable times. The con- tract also contains a final paragraph, which has given rise to this controversy, and which is couched in this language: "In the event of the death of the party of the first part, all of his property, after the payment of any debts he may owe, shall be divided equally between the party of the second part, and their two children."
After Gust D. Harris was granted the divorce from Grace Harris, he performed the obligations imposed upon him by the contract until his death, except that he made no conveyance, transfer, or will to carry into effect the above quoted provision of the contract. On June 15, 1945, more than four years after he had obtained a divorce from Grace Harris, he married the plaintiff, Garnett Lee Harris, and they lived together as husband and wife until his death.
On February 2, 1935, while Gust D. Harris and Grace Harris were living together as husband and wife, he purchased real estate designated as Lot No. 7, Section 127, in Princeton, Mercer County, West Virginia. A brick building is located on the land, and the property, including the building, is alleged to be worth approximately $20,000.00. Gust D. Harris held the legal title to this real estate at the time of his death.
The ground advanced in support of the demurrer of the defendants to the bill of complaint is that Gust D. Harris was not seized of an estate of inheritance in the foregoing real estate at the time of his death because the contract operated to deprive him of an estate of that nature. The demurrer of the plaintiff to the answer and the amended and supplemental answer of the defendants challenges their sufficiency on the ground that they do not allege that Gust D. Harris was not seized of an estate of inheritance in fee simple in the real estate.
The sole question presented is whether the agreement between Gust D. Harris and Grace Harris deprives the plaintiff, as his widow, of dower in his real estate.
Contracts of the character of the agreement here in suit have produced extensive litigation. In some of the decided cases the contract involved provided that the owner of the property should effectuate its purpose by means of a will; in others the contract required a conveyance of real estate or a transfer of personal property.
The contract involved in this case does not indicate the method by which Gust D. Harris intended to vest title to his property in his former wife and the two children. It is not effective as a testamentary disposition of property. In so far as it makes provision for the payment of his debts and permits the alienation of his real estate, if he substituted for it a suitable home for his former wife and the children, it possesses the characteristics of a will.
The principles which apply to a contract to make a will and to a parol contract to convey and transfer property are substantially the same. Davidson v. Davidson, 72 W. Va. 747, 79 S. E. 998. For statements of the rule applicable to contracts to convey which deal with variant facts, see Hurley v. Beattie, 98 W. Va. 125, 126 S. E. 562; Chapman v. Chapman s Trustees, 92 Va. 537, 24 S. E. 225; Price v. Craig, 164 Miss. 42, 143 S. E. 694; Newberry Co. v. Shannon, 268 Mass. 116, 167 N. E. 292, 63 A. L. R. 133; Ruch v. Ruch, 159 Mich. 231, 124 N. W. 52. The contract here involved may properly be treated as a contract by Gust D. Harris to will his property to the defendants. A contract of that nature is controlled by the same rules and principles as any other valid contract and, when certain and definite in its terms, and upon sufficient consideration, if equitable, it is valid and enforceable.
Before determining the effect of the contract with respect to the right of dower asserted by the plaintiff, an inquiry concerning its validity is necessary to ascertain whether it is based upon sufficient consideration, whether it is certain and definite, whether it is equitable, and whether the statute of frauds applies.
The contract here in suit was entered into between the parties for the purpose of concluding a property settle- merit by persons who then occupied the relation of husband and wife and who, at the time, contemplated a divorce. It is obvious that Gust D. Harris did not desire to submit to the court, in the divorce proceeding, any questions of alimony for his wife or of support and maintenance of the children, and that he preferred instead to arrange those matters by a contract which provided that upon his death his property should belong to them. As consideration for the agreement upon the part of Gust D. Harris his then wife, the defendant Grace Harris, relinquished valuable rights which she could have asserted in the divorce suit. Nothing appears from the contract, or the alleged facts and circumstances under which it was entered into, to indicate that it is inequitable. An agreement between a husband and a wife, who are separated at the time it is made, which does not disclose any injustice, inequity, or other vitiating circumstances, is presumptively valid. Smith v. Smith, 125 W. Va. 489, 24 S. E. 2d 902.
There is no uncertainty with respect to the provisions of the contract between Gust D. Harris and Grace Harris here under consideration. It is certain and definite in all its terms and provisions. By it he agreed to give all of...
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...the means adopted for carrying out the transaction. It neither created nor changed the rights of the beneficiaries.' In Harris v. Harris, 130 W.Va. 100, 43 S.E.2d 225, the husband obtained a divorce and the parties made an agreement in writing as to support of the wife and children. Among o......