Sanders v. Sanders
| Decision Date | 15 March 1955 |
| Citation | 57 A.L.R.2d 932,288 S.W.2d 473,40 Tenn.App. 20 |
| Parties | Dr. B. F. SANDERS v. Hazel B. SANDERS. 40 Tenn.App. 20, 288 S.W.2d 473, 57 A.L.R.2d 932 |
| Court | Tennessee Court of Appeals |
[40 TENNAPP 22] Ladd & Qualls, Harriman, for complainant.
McCluen & Cooley, Rockwood, for defendant.
This is a suit between husband and wife while still living together, involving the validity of an antenuptial contract.
Referring to the parties as they appeared below the complainant, Dr. B. F. Sanders, a dentist, filed the original bill herein against his wife, Hazel B. Sanders, alleging that they were last married October 28, 1951, previous to which they had been twice married and divorced.
The bill alleges as a condition to their remarriage in October 1951, the defendant required the complainant to execute the following contract:
'This instrument, made and entered into on this the 26th day of October, 1951, by and between Dr. [40 TENNAPP 23] B. F. Sanders, hereinafter called the first party, and Hazel Burnette, hereinafter called the second party.
'Whereas, The parties to this instrument are contemplating marriage and establishing a home together, and
'Whereas, Each has property of their own and upon their marriage desire to pool their resources for the benefit of each other, and
'Whereas, In order to avoid any future conflict as to their rights and interests in said property this instrument is made.
'Now Therefore, For and in consideration of the mutual benefits to be derived therefrom the parties agree and bind themselves as follows:
'1. The parties hereby agree to enter into the marriage relation and live together as husband and wife.
'2. On or before the date of marriage all property belonging to the parties, including bonds, bank accounts and realty, shall be re-issued, re-deposited and deeds drawn so that each party shall be the joint owner, with right of survivorship, of all of the property at present owned and held by the parties separately and individually.
'3. Each party obligates himself to purchase and hold all property, present and future, jointly with the other party and agrees to execute any instrument necessary to convey, sell, or encumber any property, real or personal, when it is to the best interest of both parties that same be conveyed, sold, or encumbered.
[40 TENNAPP 24] '4. At the death of either party the property belonging to both shall be and become the absolute property of the other, free from claims of any and all other persons. To make effective and certain this section of the agreement a joint will of the parties is made and is placed in their safety deposit box in the First National Bank in the City of Harriman, Tennessee.
'In Witness Whereof the parties hereto have set their signatures on the day and date first above written.'
The bill alleges as a further condition of the remarriage defendant required complainant to execute a joint will with her, by which each gave to the other all joint property except that if defendant died first, the estate in the hands of complainant was charged with the payment [40 TENNAPP 25] to defendant's parents, if living, $1,000 per year for ten years. Upon the death of the survivor the estate to be equally divided between heirs of complainant and parents of defendant. The bill gives notice that complainant revokes and declares void the will.
The bill also alleges that the antenuptial contract is void 'being against public policy.' As reasons for his desire to cancel the contract and revoke the will, he charges that defendant 'in recent months has conceived the idea that she can treat the complainant as she pleases and that he must endure it.' As examples of alleged mistreatment complainant charges that defendant refused to sign joint income tax return and refers to his grandson as 'a little Bastard.'
The bill further alleges: 'Your complainant avers that he loves his wife, that he expects to live with her if she will permit him to do so, and will treat him right, and he expects to leave her a substantial amount of property and money on his death, but he would like to have the privilege of giving her something rather than being under a contract to give her all.'
The bill prays that the contract and will be cancelled and revoked, or in the alternative that the contract be declared void as a violation of public policy.
Defendant filed an answer and cross-bill averring that she and complainant were first married on December 24, 1938 and first divorced in February 1949. They remarried in April 1949; that complainant filed a divorce action against her in July 1949, which was dismissed in December 1949; that complainant filed a second divorce action against her March 23, 1951, to which she filed answer and cross-bill, and she was granted a second divorce on June 4, 1951 and remarried in October 1951.
[40 TENNAPP 26] The answer admits the execution of the foregoing contract, and avers that it was proposed by complainant to induce her consent to a remarriage; that he had it prepared by his attorneys and it was 'made in consideration of and prior to their third marriage.' Defendant avers that she has complied with her part of the contract, and that complainant has refused to comply therewith, and she denied that the contract is void. She prayed for specific performance and for injunction restraining complainant from transferring or incumbering any of his property to defeat the instrument.
The answer denies all wrongdoing alleged against defendant in the original bill.
On the issues thus made, oral hearing was had before the Chancellor who filed a carefully prepared opinion holding that the whole contract was void by reason of provision 5, which was against public policy and could not be deleted from other parts of the contract.
Accordingly a decree was entered dismissing both original and cross-bill and taxing complainant with all costs.
From the decree both parties have prayed appeals and have assigned errors, the complainant insisting that the Chancellor erred (1) in refusing to cancel the contract after having found it to be void, and (2) in refusing to enter a declaratory decree.
The defendant assigned errors insisting that the Chancellor erred (1) in holding the antenuptial contract against public policy and void because of provision 5; (2) in holding the contract was not severable and paragraph 5 could not be deleted; (3) in refusing to grant specific performance as prayed; (4) in refusing to enjoin the complainant from revoking his will; and (5) in refusing[40 TENNAPP 27] to allow defendant's attorneys a reasonable fee for their services.
Inasmuch as assignments 1 and 2 present substantially the same questions, they will be considered together.
First: Is paragraph 5 of the antenuptial contract against public policy and void? This paragraph reads as follows:
Regarding paragraph 5, the Chancellor's opinion correctly states:
Then the Chancellor quoted from 12 Am.Jur., the following:
Other authorities are also quoted, from all of which the Chancellor concludes that provision 5 of the contract is contrary to public policy and void.
Among the numerous cases referred to in the above Annotation is the case of Gore v. Howard, 94 Tenn. 577, 30 S.W. 730, in which a will contest instituted by a daughter was dismissed on the ground that she had entered into a valid contract with her father during his life to accept certain advancements in full satisfaction of her interest in his estate. It was insisted on behalf of the daughter that the contract was against public policy and void, but the Supreme Court held otherwise, holding that the contestant was estopped from contesting the will while retaining the benefits received by the contract.
In Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755, it was held that provision in a will providing for forfeiture of bequest of legatee who contested the will was not void against public...
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