Potter v. Potter
| Decision Date | 20 March 1931 |
| Citation | 101 Fla. 1199,133 So. 94 |
| Parties | POTTER v. POTTER et al. |
| Court | Florida Supreme Court |
Suit by Martin Potter against Cramer B. Potter, individually, and as executor of the last will and testament of Harry B. Potter deceased, and another. From an order sustaining a demurrer to the bill of complaint, complainant appeals.
Affirmed.
Syllabus by the Court.
Where the agreement upon which complainant relied as basis for his suit to cancel a will was made to facilitate the procuring of a divorce, such agreement for that reason was a fraud upon the court and was void in law.
The existence of the family relation is based upon the sanctity of the marriage relation, and for that reason the state is a party at interest in every marriage contract, and so zealously does it regard and guard this interest for the promotion of public welfare and of private morals as to hold itself to be a party to every marriage contract which is entered into or recognized by the parties within its jurisdiction, and to this end it is the policy of the state not to permit the dissolution of the marriage relation by any agreement between the other two contracting parties, but only when the state, through its judicial branch, determines that there are just grounds as provided and defined by statute for the annulment of the marriage relation and enters the decree of its court terminating the contract.
The law is well settled that contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy. 9 R. C. L. 254, and cases there cited. The reason for the rule as defined by the law writers is that a suit for divorce is in reality a triangular proceeding in which the husband, the wife, and the state are parties. The marital relation, unlike ordinary relations, is regarded by the law and the state as the basis of the social organization. The preservation of that relation is deemed essential to the public welfare. Adams v. Adams, 25 Minn. 72. When the marriage relation has been assumed, it is indissoluble except by the solemn judgment of a court for some cause which after severe and jealous scrutiny the court shall find sufficient under the law to warrant the judgment. Smutzer v. Stimson, 9 Colo. App. 326, 48 P. 314. Such agreements between the parties intending to facilitate the procuring of a divorce are therefore a fraud upon the law and the courts who in behalf of the state administer the law. Sayles v. Sayles, 21 N.H. 312, 53 Am. Dec. 208.
Appeal from Circuit Court, Duval County; De Witt T Gray, judge.
D. Niel Ferguson, of Ocala, for appellant.
Frank E. Jennings, of Jacksonville, for appellees.
In this case the appellant filed a bill of complaint against the appellees, seeking to cancel what purported to be the last will and testament of Harry B. Potter, as probated in Duval county, and to have the appellant adjudicated the sole devisee under a purported former will of Harry B. Potter, to require Cramer B. Potter to execute an assignment and transfer of all the property and assets of the estate of Harry B. Potter which had come into the hands of Cramer B Potter as executor of the last will and testament of the said Harry B. Potter, deceased, and to require an accounting of the estate of Harry B. Potter and to adjudicate the purported will executed by Harry B. Potter to Martin Potter to be the last will and testament of Harry B. Potter, and to decree that all the property of the estate of Harry B. Potter, deceased, except that required to pay just debts and funeral expenses, be vested in Martin Potter, and for other relief.
The bill alleged, amongst other things, that Martin Eaton was the son of Lucile M. Potter by a former marriage, and that, during the time that Harry B. Potter and Lucile M. Potter were living as husband and wife, after lawful marriage, Martin Eaton was adopted, pursuant to legal proceedings, by the Potters, and assumed the name as decreed by court of Martin Potter. The petition for adoption and the decree of adoption are each attached to the bill of complaint and made a part thereof.
The bill further alleges that on the 8th day of August, 1927, Harry B. Potter and Lucile M. Potter, being then husband and wife but living separate and apart from each other, entered into a certain agreement, which agreement is attached to the bill of complaint and made a part thereof. The agreement is in the following language:
Harry B. Potter, Defendant.
'The complainant will not obtain or attempt to obtain a decree for alimony in said cause.
'The defendant has placed in the custody of the solicitor for the complainant the following papers for delivery to the complainant upon rendition of final decree of divorce in said cause:
'Warranty deed of conveyance from Harry B. Potter to Lucile M. Potter, his wife, dated August 8th, 1927, covering lots 16 and 17, block 6, Brentwood; Last Will and Testament of Harry B. Potter, dated August 8th, 1927;
'Promissory note of Lucile M. Potter to H. B. Potter, for $1,000.00 dated October -- 1925;
'Certified check of H. B. Potter to Lucile Martin Potter for $500.00.
'The defendant also delivers to the complainant, upon the signing of this agreement, his two checks in her favor, one for $20.00 and the other for $35.00.
'The defendant will not be under any obligation to pay and will not pay any bills of the complainant after the signing of this agreement.
'The defendant will pay solicitor's fees and costs of said suit.
It is then alleged that Harry B. Potter executed a will in due and legal form, in which he named Martin Potter as his sole devisee, and named his wife, Lucile M. Potter, as executrix of the will. The will is also attached to the bill of complaint and made a part thereof. Afterwards it is alleged that Harry B. Potter, on the 20th day of January, 1928, made and executed in due form another will in which he attempted to revoke and make void all wills by him theretofore made and in which he bequeathed to Martin Potter the sum of $2,500 and to Eugene Hale the sum of $300 and the entire residue of his property to his brother, Cramer B....
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Kull v. Losch, 81
...11 Ann.Cas. 376. See also Branson v. Branson, 76 Neb. 780, 107 N.W. 1011; Berman v. Bradford, 127 Me. 201, 142 A. 751; Potter v. Potter et al., 101 Fla. 1199, 133 So. 94. However, the fact that the agreement is collusive must be established by proof. In Hudson v. Hudson, 176 Mo.App. 69, 162......
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Matthews v. United States, 105-64.
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