Kull v. Losch, 81

• Decision Date: 02 October 1950
• Docket Number: No. 81,81
• Citation: 328 Mich. 519,44 N.W.2d 169
• Parties: KULL v. LOSCH et al.
• Court: Michigan Supreme Court

Page 169

44 N.W.2d 169

328 Mich. 519

KULL v. LOSCH et al.

No. 81.

Supreme Court of Michigan.

Oct. 2, 1950.

Crane & Crane & Kessel, Curry & Curry, all of Saginaw, for appellant.

William C. O'Keefe, Saginaw, for appellees Waldo Losch, and others.

Otto & Otto, Saginaw, for appellees John Losch and others.

Before the Entire Bench.

CARR, Justice.

The plaintiff in this case and Emma Edna Kull were married in June, 1912. Thereafter they lived together in the marital relation until the month of June, 1939, when they separated. There were no children of the marriage. Approximately a year after the separation, plaintiff filed suit for divorce in the circuit court of Saginaw county, and the wife entered her appearance in the cause.

On the 13th of March, 1941, the parties entered into a written agreement with reference to a settlement of their property interests in the event that a decree of divorce was granted to either. The instrument executed by the parties recited the pendency of the divorce action, and the intention of Mrs. Kull to file an answer and cross-bill in the proceeding. It set forth that upon the granting of the decree plaintiff would convey to her certain real estate, the home of the parties prior to their separation, and assign to her certificates representing 400 shares of the common stock of the General Motors corporation. The agreement also provided for Mrs. Kull receiving the household furniture and other personal property, and for the payment to her, to and including the 1st of June, 1941, of the sum of $100 per month, and $25 per month thereafter during her lifetime, such payments to cease if Mrs. Kull remarried. It was further stipulated that if Mrs. Kull did not dispose of the real estate and corporate stock during her lifetime she would by will devise and bequeath the same to plaintiff, if he survived her. It is the claim of the plaintiff that the execution of the agreement followed an extended period of negotiation between the parties, in the course of which each was represented by an able and experienced attorney. It appears that the attorneys witnessed the execution of the instrument.

Following a hearing on the cross-bill filed by Mrs. Kull she was granted a decree of divorce on the ground therein alleged, extreme cruelty. On the hearing Mrs. Kull testified with reference to the agreement that she had made with plaintiff for the adjustment of property interests, indicating that she understood its provisions, and the obligations in terms imposed on her thereby. She also expressed her satisfaction with the arrangement that had been made, and her willingness to act accordingly. In the decree the court expressly approved the agreement, finding it to be 'just and equitable.' The provisions of the agreement were incorporated at length in the decree, including the promise by Mrs. Kull that, if she did not dispose of the real estate and the General Motors stock during her lifetime, she would by will devise and bequeath such property to the plaintiff, if he survived her.

The transfers contemplated by the agreement and the decree were made by plaintiff. The deed of the real estate was executed and delivered, and the certificates of stock in the General Motors corporation were assigned. Said certificates were thereafter transferred to the name of Mrs. Kull and she continued to own them, as well as the real estate referred to, until the time of her death in March, 1945. Some testimony was offered in plaintiff's behalf on the hearing of the present case indicating that, following the granting of the decree of divorce, Mrs. Kull intended to make a will in accordance with her agreement. It does not appear, however, that she did so. The defendant Waldo Losch is the administrator of the estate, and the other defendants are the heirs at law of the decedent.

In his bill of complaint plaintiff asked specific performance of the property agreement with reference to the real estate and corporate stock referred to, and that defendants be decreed to hold such property in trust for his use and benefit. Plaintiff also sought ancillary relief by way of an injunction and the appointment of a receiver. Defendants by answer and motion to dismiss alleged that the agreement on which plaintiff based his right to relief was illegal and void because repugnant to public policy, that the purpose thereof was to facilitate the granting of a decree of divorce to the end that plaintiff might marry another woman, that the agreement had for its object the concealment of the true cause for divorce, that the cross-bill on which the decree was granted did not set forth therein statutory grounds for a decree dissolving the martial relation, and that the execution of the instrument in question was part of a 'collusive agreement to obtain a divorce.' Defendants further alleged in their pleadings that the purported contract was void for the reason that it was conditioned on the granting of a divorce decree.

Following a hearing in the circuit court the trial judge came to the conclusion that the promise of Mrs. Kull that plaintiff should have the real estate and stock in question on her death, if he survived her, and if she had not in the meantime disposed of the property, was a gratuity, and as such not enforceable against the defendants. He further expressed the opinion that the agreement in question was contrary to public policy. The opinion filed did not, however, contain any specific finding that the contract was collusive, or inequitable, or that Mrs. Kull was induced to execute it because of fraud or duress. A decree was entered, in accordance with the opinion of the trial judge, dismissing the bill of complaint, and plaintiff has appealed.

Counsel for defendants suggest in argument that the provision of the decree, incorporated therein in accordance with the property settlement, in terms requiring Mrs. Kull to make a will, was without force and effect. Attention is called to Mertens v. Mertens, 314 Mich. 651, 23 N.W.2d 114, in which such a provision, based on the consent of plaintiff Mertens in open court, was inserted in a decree of divorce. It was held that the objection to such provision, made on appeal from the decree, was well founded. However, attention was called to the fact that there was no contract between the parties with reference to the making of a will. In the case at bar the question at issue is the validity of the contract which plaintiff seeks to have enforced. That such is the issue was expressly recognized by counsel for defendants on the hearing in circuit court.

We are not in accord with the opinion of the trial judge that the undertaking on the part of Mrs. Kull with reference to the real estate and the corporate stock was a mere gratuity. Ordinarily a property settlement made between spouses in connection with a pending or contemplated divorce suit involves mutual promises and undertakings. The agreement in the instant case is no exception in this respect. Plaintiff agreed to make certain conveyances and payments of money. Mrs. Kull undertook to bind herself to accept such property and payments in full satisfaction of her claims, and further undertook by way of consideration for the plaintiff's promises, to leave the home and the General Motors stock to plaintiff, if he survived her, and if she had not disposed of such property during her lifetime. Considering the contract in its entirety, it cannot be said that the promises of Mrs. Kull was without consideration.

The supreme court of Missouri in Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249, 252, discussed at some length the matter of consideration in a property settlement between spouses. There the parties to a pending divorce case entered into an agreement with reference to property interests. In accordance therewith the defendant husband undertook to pay the plaintiff the sum of $1,500 and to withdraw an answer filed by him in the divorce case. The plaintiff promised on her part that she would execute a deed releasing her dower in land owned by the defendant. A decree was granted to plaintiff, and immediately thereafter the deed in question was executed and delivered. Following the death of the husband, plaintiff filed a petition in court for the assignment to her of dower in the lands of her former husband. It was her claim that the execution of the deed was wholly without consideration. In rejecting such contention, it was said in part: 'The question of alimony was an open one, which required proof in reference thereto, and which was dependent upon the exercise of a sound judicial discretion by the trial court in allowing same. With the answer on file she would have been put to her proof, not only as to the merits of the controversy, but likewise in respect to the alimony claimed. In other words, she was confronted with a lawsuit, and through the foregoing settlement was relieved from a contest as to the merits as well as concerning the question of alimony. The defendant in the divorce case, pursuant to said settlement, withdrew his answer, and paid the $1,500 agreed upon. Pursuant to the same settlement, the plaintiff executed the quitclaim deed, releasing to said defendant her inchoate right of dower in the lands mentioned in petition, and received a moneyed consideration for same. She was not only settling a lawsuit, but by virtue of the settlement, was obtaining a speedy trial, without any right of appeal being open to defendant. We are of the opinion that the foregoing agreement was supported by a valid consideration.'

The principal question in the case at bar is whether, as claimed by defendants, the contract was void because repugnant to public policy. It is argued that any agreement between spouses that has a tendency to bring about their separation or to destroy the marital relation is open to objection. This court has recognized that such a contract made while the spouses are living together, to effectuate a future...