Loud v. Loud

• Decision Date: 22 January 1868
• Citation: 67 Ky. 453
• Parties: Loud v. Loud, & c.
• Court: Kentucky Court of Appeals

67 Ky. 453

Loud v. Loud, & c.

Court of Appeals of Kentucky.

January 22, 1868

1. After the wife had permanently abandoned her husband and his home, the husband and wife, together with a third party as her trustee, entered into articles of separation, which was duly acknowledged for record by the husband, and also by the wife and her trustee. In these articles it was recited that she had voluntarily abandoned him " without legal cause to authorize either dower or alimony, " which recital was justified by the evidence in the case, and it was then stipulated that he should pay her three hundred dollars and furnish her with a brick house, & c., & c., during her " chosen isolation." After the death of the husband, without devising any thing to her, she made a deed of release within the year as provided in section 7, chapter 47, Revised Statutes, and asserted her claim to dower in his estate. The judgment of the circuit court refusing dower is affirmed.

2. The right of a wife to relinquish a jointure and claim dower in her husband's estate within twelve months after his death, as provided in section 7, chapter 47, Revised Statutes (2 Stant., 26), does not embrace articles contracts, and jointures entered into between separated husband and wife, to settle existing causes of litigation and peaceably accomplish by private contract what could be obtained by a costly and vexatious litigation.

3. Articles of separation being entered into with a trustee consenting for the wife, in which the husband provides for her as well, or perhaps better, than the court would compel him, in consideration of which she relinquishes right of dower and distribution in his estate, and the parties continue to act upon this until the husband dies, it is too late for her to complain or seek to repudiate the provision made for her, and demand dower and distribution. See opinion for an extended recital and review of authorities on questions involved in this case.

APPEAL FROM FAYETTE CIRCUIT COURT.

HUNT &amp BECK and W. S. DARNABY, For Appellant,

CITED--

2 Bright on Husband and Wife, pp. 327, 338.

4 Dana, 140; Simpson vs. Simpson.

Revised Statutes, sec. 7, chap. 47.

2 Bou. Inst., 252.

3 Met., 153; Tevis' ex'rs vs. McCreary.

3 Met., 504; Gaines' adm'r vs. Poor.

3 Paige, 483; Carson vs. Murray.

4 Paige, 516; Rogers vs. Rogers.

2 Edwards' Chy. R., 592; Day vs. West.

2 Sandford's Sup. Ct. R., 711; Townsend vs. Townsend.

30 Barbour, 47; Crepsy vs. McKinney.

41 Barbour, 96; Wallace vs. Bassett.

6 Humphries, 287; Parham vs. Parham.

16 Ohio, 531; Miller vs. Miller.

31 English Law and Equity R., 35; Wilson vs. Wilson.

HUSTON & MULLIGAN and KINCAID & BUCKNER, For Appellees,

CITED--

5 Mon., 138; Fauntleroy vs. Crow's heirs.

16 Ohio, 530; Miller vs. Miller.

1 House of Lords Cases, p. 538; Wilson vs. Wilson.

10 Ohio, 247; Thomas vs. Brown.

Reeves' Domestic Relations, 97, 98, note 1.

3 Paige Chy. R., 452; Gartic vs. Strong.

7 Ohio, 208; Hardy vs. Van Harlinger.

19 Indiana, 505; Houghton vs. Houghton.

7 Yerger Tenn. R., 283; Watkins vs. Watkins.

2 Blackstone, p, 137; 4 Kent, 55.

Roper on Husband and Wife, p. 463.

Revised Statutes, sec. 7, chap. 47.

2 Met., 410; Yancy vs. Smith.

OPINION

WILLIAMS CHIEF JUSTICE.

Appellant and Richard Loud, deceased, intermarried December 1, 1859, and in the following April she permanently abandoned him and his home, and so continued, when December 6, 1863, they, together with David Bell, as her trustee, entered into articles of separation, which he acknowledged for record January 20, 1864, and she and her trustee acknowledged for the same purpose two days thereafter. Richard Loud died in February, 1866, testate, without devising anything to her, though owning a large personal and real estate.

June 2, 1866, Mrs. Loud, by a written article of release, duly acknowledged and recorded, attempted to relinquish all her interest under the articles of separation, for the purpose of claiming a dower and distributable interest in her deceased husband's estate.

The article of separation recites that she had voluntarily abandoned him " without legal cause to authorize either dower or alimony," and the parol testimony now in the cause justifies this recital. It was then stipulated that he should pay her three hundred dollars, and furnish her the use of a certain brick house and the lot, & c., during her " chosen isolation," pay the taxes, and keep the premises in repair, and secure her free from intrusion or disturbance during her life. This involves two prominent inquiries--

1. Is this a jointure within the meaning of our statute, which the wife may repudiate within one year from her husband's death?

2. Is it obligatory on her without reference to the statute?

It is provided by section 7, chapter 47 (2 Stant. Rev. Stat. ), that " a conveyance or devise of real or personal state, by way of jointure, may bar the wife's dower; but if made before marriage, without her consent, or during infancy, or after marriage, she may, within twelve months after her husband's death, waive the jointure by written relinquishment, acknowledged, & c., and have her dower."

This statute was evidently intended to embrace all jointures made before marriage by the husband without the wife's consent, and all, whether made before or after, and with or without the consent of a minor wife, and also all made subsequent to marriage with a wife living with her husband. The policy of the statute in all these cases harmonizes with the wisdom of our equity jurisprudence, and is confirmed by the observation of the most renowned of the English and American jurists; but it never intended to embrace cases where the parties had separated, and where cause of litigation and divorce existed, especially when the wife was at fault.

The compromise and settlement of causes of litigation between separated husband and wife is as much a subject of favor and solicitude on the part of legal policy as that of other parties; true, the ministers of law should be the more vigilant in scrutinizing such transactions, because of the peculiar relations of the parties, and the superior power and cunning and knowledge of the husband; but when, in good faith, such litigation is compromised through the agency of a trustee selected by herself and advisers, and who faithfully discharges his duties, there is no perceivable motive why the Legislature should virtually forbid this well-guarded and preserving power of the separated wife, which would be the case if she could not bind herself to abide the provisions of such articles, but should still have the right, within a year of the husband's death, to renounce and claim as his surviving widow. This would end all compromises between separated husband and wife, and drive them into the courts, however inclined they might be to adjust the matter themselves, and often draw upon the wife a long, vexatious, and to her a ruinous litigation, and which would not unfrequently be as harassing and detrimental to the husband.

Regarding the language, spirit, and presumed motive and policy of the statute, it is not deemed to embrace articles, contracts, and jointures, entered into between separated husband and wife to settle existing causes of litigation, and peaceably accomplish by private contract what could be obtained by a costly and vexatious litigation. Should the husband have a cause for a divorce, why may he not waive this and agree with his wife and her trustee to renounce her legal right to his estate in consideration of an agreed sum? Especially as by suit he could entirely bar her, what public policy or morals would forbid this? Was it intended by that statute to drive the injured husband into the legal forums to vindicate his legal rights as against his erring wife, or might a constructive policy, more in accord with the enlightened jurisprudence of the age, be imputed? As this case is not within the letter nor presumed intent of said statute, we turn to examine the legal powers and rights of the parties independent of it.

In Carson vs. Murray (3 Paige, 500) Chancellor Walworth, of New York, whilst expressing his doubts as to the public policy of upholding articles of separation between husband and wife, except made under the sanction of a court of justice, yet conceded that it had " long since become the settled law of England that a valid agreement for an immediate separation between husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee." He further says, these decisions were anterior to...