Lewis v. Johnson
| Decision Date | 03 April 1923 |
| Citation | 251 S.W. 136,212 Mo.App. 19 |
| Parties | M. R. LEWIS et al., Appellants, v. EDITH JOHNSON, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Washington County.--Hon. E. M Dearing, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Chas H. Richeson, and James Booth, for appellant.
The contract pleaded in the petition was not one in restraint of marriage as held by the trial court. It was a valid and binding contract and its breach afforded plaintiffs a cause of action against defendant for that breach. It is a well-settled rule of law at the present time that the doctrine of invalidating contracts on account of being in restraint of marriage applies to first marriages only. The contract evidenced by the petition was not one in restraint of marriage, but was a provision for the defendant during her widowhood; but if it had been in restraint of marriage, it could only have restrained a second marriage of defendant and therefore was not within the rule. Deposit Company v Armstrong, 70 N.J.Eq. 572; Harlow v. Bailey, 189 Mass. 208; Wright v. Mayer, 62 N.Y. 210; In re Bruchs Estate, 185 Penn. St. 194; Herd v. Catron, 37 L. R. A. 731; Overton v. Lea, 108 Tenn. 505; Claud v. Calhoun, 10 Rich. Eq. 358; In re Appleby, 100 Minn. 408, 10 L. R. A. 590; Jones v. Jones, L. R. 1, 2 B. Div. 279; Allen v. Jackson, L. R. 1, Ch. Div. 399; Witherspoon v. Brokaw, 85 Mo.App. 169; Wise v. Crandall, 215 S.W. 245; 10 Anno. Cases, 563; Quirk v. Bank, 244 F. 682; Jones v. Jones, 1 Col. App. 28; Waite v. Morill, 4 Me. 102; Arthur v. Cole, 56 Md. 100; Schafer v. Senseman, 125 Pa. St. 310; 13 Cor. Jur., page 462, sec. 404.
Munger & Munger and E. C. Edgar for respondent.
The petition does not state facts sufficient to constitute a cause of action; it alleges that plaintiffs and defendant entered into a contract whereby defendant bound and obligated herself to return to plaintiff a stipulated sum of money which was all of a gift to defendant from plaintiff in the event she, defendant, should ever re-marry. Such an agreement is against public policy, and is void under the laws of this State, and is a contract in restraint of marriage generally, and the courts in the following cases have held such contracts are void. Knost v. Knost, 229 Mo. 170; Williams v. Cowden, 13 Mo. 150; Dumey v. Schoefler, 24 Mo. 170, 13 C. J. 330; Walsh v. Mathews, 11 Mo. 91; Baker v. White, 2 Vern. 215; Grace v. Webb, 15 Sim. 384; Sterling v. Simick, 5 N. J. L. 871; McConahey v. Griffey, 82 Iowa 564.
The petition herein charges that the plaintiffs are the father, mother, brothers and sisters of Charles W. Lewis, deceased, who died intestate in Washington County, Missouri, in 1918, leaving surviving him as his heirs at law these plaintiffs and the defendant, Edith Johnson, his widow; that at the time of his death said Charles W. Lewis was the owner of certain personal property of which, after the payment of debts and costs of administration, plaintiffs were entitled to one-half and the defendant one-half; that in 1919 plaintiffs assigned their interest in said property to defendant in consideration of defendant's promise and agreement that if she should remarry she would pay to plaintiffs a sum equal to one-half of the personal estate of Charles W. Lewis; and that in the event of defendant's death plaintiffs would be paid out of her estate a like some. It is alleged that the real object and purpose of plaintiffs and defendants in entering into such contract was to provide for defendant during her widowhood only. It is further alleged that defendant was appointed administratrix of said estate, duly administered thereon, and was finally discharged by the Probate Court of Washington County, and that upon her final settlement as such administratrix there was a balance on hand, after payment of all debts, allowances, and expenses of administration, the sum of $ 3245.61; that by virtue of said assignments and contract defendant received for her own use and benefit the entire balance of the estate thus on hand and was discharged as such administratrix. And it is averred that in 1920 defendant married one G. A. Johnson, whose wife she now is; and that she has breached her said contract with plaintiffs in that on her remarriage she did not pay plaintiffs a sum equal to one-half of said estate or any other sum, but has failed and refused and still fails and refuses to pay to plaintiffs the same or any part thereof. Judgment is prayed for one-half of the amount alleged to have been received by defendant from said estate on final settlement, to-wit, $ 1622.80.
To this petition defendant demurred generally. The trial court sustained the demurrer, and plaintiffs declining to plead further, final judgment was rendered for defendant on the demurrer, and the plaintiffs have appealed to this court.
It appears that the trial court sustained the demurrer on the theory that the contract alleged in the petition, whereby defendant, it is alleged, in consideration of the said assignment to her, agreed to pay to plaintiffs one-half of the value of the personalty remaining on hand in said estate at the time of final settlement in the event that defendant should remarry, is void as being in restraint of marriage. And this is the only question discussed in the briefs.
It is the contention of appellants that the contract declared upon in the petition is not one in restraint of marriage, but one making provision for the defendant to be limited to the period of her widowhood; and that if it be regarded as one in restraint of marriage, it merely operates as a restraint upon a second marriage and hence is not within the rule invoked by the defendant.
Much of the argument here has to do with cases involving restraint of marriage in connection with gifts by will. It is conceded by defendant that out courts have uniformly held that a husband may by will make provision for the support of his wife to continue during widowhood only, and to terminate upon her re-marriage; but it is contended that this is the only exception to the rule that a condition in general restraint of marriage is against public policy and void. And in support of this view defendant points to the language of LAMM, J., in Knost v. Knost, 229 Mo. 170, 129 S.W. 665, where, in considering a provision of a will in total restraint of marriage, cutting down a devise and bequest to a daughter in the event she should ever marry, the learned author of the opinion said: But as that case did not involve a restraint of a second marriage, the language quoted did not pertain to a matter there in judgment and should not be taken as deciding that the general rule against total restraint of marriage applies to second marriages except where a husband makes provision for his widow and annexes a condition that she do not remarry.
In the recent case of Wise et al. v. Crandall, 215 S.W 245, the Supreme Court had before it a case involving a devise and bequest to the testator's daughter who had been once married and divorced, but which was to be cut down if she should again marry. It was held that the condition annexed thereto was valid. Referring to Knost v. Knost, supra, it was said: And the court further said: "We now say sometimes, as in the Missouri case we have cited, that a man has such an interest in the viduity of one who may become his widow that in making testamentary provision for her he may...
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