Hughes v. Burke

• Decision Date: 19 November 1934
• Docket Number: 8.
• Citation: 175 A. 335,167 Md. 472
• Parties: HUGHES v. BURKE ET AL.
• Court: Maryland Court of Appeals

175 A. 335

167 Md. 472

HUGHES v. BURKE ET AL.

No. 8.

Court of Appeals of Maryland

November 19, 1934

Appeal from Baltimore City Court; Charles F. Stein, Judge.

Suit by Edward H. Burke, trustee, and another against Adrian Hughes Jr. From a judgment sustaining a demurrer to defendant's pleas, defendant appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

Wm Purnell Hall, of Baltimore (Elmer H. Miller, of Baltimore, on the brief), for appellant.

Daniel B. Leonard, of Baltimore, for appellees.

ADKINS Judge.

On November 5, 1929, Adrian Hughes, Jr., and Molly B. Hughes his wife, entered into an agreement in writing which recited that said Adrian had left his wife and declared his intention to live with her no more; that there was a dispute between them with regard to the amount of money the husband should pay for the support of his wife and children; and that the arrangement thereinafter set forth had been agreed upon in settlement of said dispute, and to settle their marital and property rights. In consideration thereof and of his duty to provide for his wife and children, "and of the covenants on the part of his said wife hereinafter contained," the husband agreed (1) that the wife might live separate from him and free from his authority and that he would not use any violence or restraint to her person, or interfere with her or her liberty; (2) that all of her property should be her sole and separate property free from any claim of the husband, and that he would join in any conveyances thereof to enable her to deal with her property as if unmarried; (3) that he would during their joint lives pay to her for the support of herself and their children the sum of $3,120 annually in monthly payments, on or before the 8th day of each month said monthly payments to be reduced in the amount of $30 as to each child that should die or marry or attain his or her majority or become self-supporting; also agreed to pay tuition of his son at college, but that so long as the wife continued to occupy a house mentioned, she should be paid $200 per month in lieu of the $260; (4) that she should have the care and custody of the two daughters and of the son during their minority, provided she should at all times properly provide for their support and education, and that the children should have the right to visit the father, and he should have the right to have them with him at all reasonable times. In consideration of said covenants on his part, she covenanted and agreed (1) not at any time to molest him or prosecute any one as having been instrumental in bringing about their separation; (2) not to incur any debt or liability on his account and to hold him harmless from any debt incurred by her and, so long as he paid the monthly installments agreed upon, that she would not bring any suit for support, maintenance, or alimony or for the support and maintenance of the children; (3) not to claim any interest as wife or widow or heir in his property, and that she would execute all necessary deeds or papers to enable him to dispose of his property, and to sign any papers necessary to enable him to change the beneficiary in life insurance policies; (4) to permit the children to visit him. It was further agreed that neither party by said agreement waived any cause for divorce which then existed or might thereafter arise; but that in the event of any suit for divorce involving alimony, the alimony should not exceed the said sum of $260 per month; and that said agreement should not be affected by a suit for divorce brought by either party or by any decree entered therein. It was further agreed that in case he failed to make the payments agreed upon and she should elect to bring suit for alimony, the provisions in said agreement for monthly payments by him should become null and void, and that any allowance for alimony and support for her and the children should not exceed the amount provided in said agreement and should be subject to the terms therein provided, but otherwise the provisions of the agreement should not be affected by such suit. It was further agreed that in the event she should fail to properly provide for the care, maintenance, support, and welfare of the children or any of them, the amount to be paid to her should be reduced by the deduction of $30 per month per child and the custody of such children or child be arranged for to the satisfaction of said Adrian, and the decision of such failure should be left for the determination of Edward H. Burke, trustee under the deed of trust, which the said husband and wife have executed in order to more fully effectuate said agreement. It was further provided that the agreement might be terminated by a written agreement of the parties. By the deed of trust executed on the same day, the husband and wife conveyed to Edward H. Burke, trustee, certain real estate in Baltimore county, in trust to sell the same and out of the proceeds to pay certain debts of the grantors, and to hold the balance of the proceeds, invest and reinvest the same, and to pay the net income therefrom to the said Adrian during the joint lives of the husband and wife; provided that if and whenever the husband should fail to make any one or more monthly payments to the wife within five days of the due date thereof as provided in the above-mentioned agreement, the trustee may pay the same for him out of the...