The Chancellor.
It may well be doubted whether public policy does not forbid any agreement for a separation between husband and wife, except under the sanction of a court of justice; and whether it does not also require that such agreements should be limited to those cases where by the previous misconduct of one of the parties the other is entitled to have the marriage contract dissolved, either wholly or partially, by a decree of the competent tribunal. The late lord chancellor of England, the Earl of Eldon, expressed his opinion very freely on this subject, in the case of Lord St. John v. Lady St. John, at the time he first held the great seal, (11 Vesey, [501]*501526.) He reiterated the same opinion sixteen years after-wards, in the case of The Earl of Westmeath v. The Countess of Westmeath, (Jacob’s Rep. 126.) And as late as 1830, in a subsequent suit between the same parties in the house of lords, on an appeal from Ireland, he again took occasion to expess his astonishment that the doctrine should ever have prevailed, that the parties to a marriage contract might, by an agreement between themselves, destroy all the duties and obligations of that important and sacred relation, not only as it regarded themselves but their children also. (1 Dow & Clark’s Rep. 544.) It has, however, long since become the settled law in England, that a valid agreement for an immediate separation between a husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee. And as many of the decisions which have gone the greatest length on this subject took place previous to the revolution, they have been recognized here as settling the law in this state to the same extent. (Vide Baker v. Barney, 8 John. Rep. 73. Shelthar v. Gregory, 2 Wendell’s Rep. 422. 2 Raithby’s Vern. 386, n. 1.) I do not, therefore, feel myself at liberty to follow the opinions of the judges of the present day, as to the policy of supporting such agreements, in opposition to the law as settled by their predecessors; though I would not consent to extend the principle beyond adjudged cases. According to those cases, agreements for separations cannot be supported, either at law or in equity, unless the separation has already taken place, or is to take place immediately upon the execution of the agreement. The contract will also be considered as rescinded, if the parties afterwards cohabit or live together as husband and wife, by mutual consent, for ever so short a time. And the husband will, in that case, be restored to all his marital rights, to the same extent.. as if no separation had ever taken place. Testing the a-' greement in this case by these principles, I cannot see that-' there is any thing in the contract, as proved, to render it invalid. It appears to have been an agreement for an immediate separation ; the amount of alimony to the wife, and the particular mode of carrying it into effect, to be settled by arbitrators selected by the parties. Those matters [502]*502Were settled by the arbitrators; and the substance of their award is now established by the testimony of two of them, and by the answer of the third who was selected as the trustee for the wife. The precise terms of the written instrument afterwards prepared and which was signed by both parties and the trustee as well as by the other arbitrators, cannot now be ascertained, in consequence of the loss of the instrument by the trustee in whose hands it was placed. But as it appears a lawyer was employed to put it into form, in the absence of all proof to the contrary, I think that it may fairly be presumed there was a covenant on the part of the husband, with the trustee, to pay the annuity to the wife for life, in lieu of dower and of all other claims upon the estate of the husband either before or after his death, according to the terms of the award. The separation took effect immediately, and the parties do not appear to have lived or cohabited together as husband and wife afterwards. It is supposed by the appellants’ counsel that the provision in the articles of separation for visiting each other in case of sickness, was intended as a reservation of the right of occasional cohabitation by mutual consent. Even if he is correct in that conjecture, I do not see that it would vitiate the contract. If such an arrangement had in fact been carried into effect, by sexual intercourse after the separation, it might indeed have rescinded the agreement, notwithstanding the express stipulation to the contrary which was contained therein. But as neither party had the right to visit except by mutual consent, even in case of sickness, the reservation could not destroy the agreement if either declined to receive or return the visits of the other. And there is no evidence that the parties ever acted on that stipulation in the agreement. The answer of Bailey, the trustee, was not evidence against the executors. And if they had objected to the giving of paroi proof as to the contents of the agreement, on the ground that there was no legal evidence of its loss, I think the objection might now be sustained. But had that objection been made in season, it would have been a matter of course to have permitted the complainant to examine Bailey as a witness to prove the loss. His answer shows what probably must have been his testimony on that [503]*503subject. As this was, under the circumstances, mere matter of form, and as the paroi evidence was received without objection, I think it would be unreasonable to permit the executors to raise that question for the first time at the hearing. The vice chancellor was therefore right in declaring the complainant entitled to an allowance of $125 per annum for life, commencing at the time of the death of the testator; up to which last period it had been paid by the executors.
The next question is, whether the provision in the will was-intended to be cumulative, or only in lieu of the allowance for the support of the wife contained in the articles of separation. To understand this provision, it is necessary to inquire what was the situation of the parties after the deed of separa» ration, and at the time of making the will. The complainant alleges, in her bill, and all the witnesses agree as to this fact, that the $125 annuity was to be in lieu of all other claims upon the estate of the husband, for dower or otherwise, as well before as after his death. She also alleges that she did in fact execute a release of her dower, and all other claims, agreeably to the award. It—is evident, however, that she could not execute any valid release of her dower in the real estate of her husband in any other way than by joining with-him in a conveyance to a third person. And even if that was-done, the right of dower would again attach upon a re-conveyance of the property to the husband at any time during the existence of the marriage contract. Although it is probable that a release of dower, Sic. was contained in the deed of separation, for the purpose of putting the wife to her election if she should afterwards claim both the annuity and dower, it is very certain that her legal right of dower actually existed notwithstanding the release. And the testator was, probably," informed that such was the fact, by his legal adviser who prepared his will. It appears by the answer of the defendants that the real estate out. of which the provision in the will, in lieu of dower, was to be made, was worth aboüt $2000. The income of one third of this, invested in the manner contem-.
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The Chancellor.
It may well be doubted whether public policy does not forbid any agreement for a separation between husband and wife, except under the sanction of a court of justice; and whether it does not also require that such agreements should be limited to those cases where by the previous misconduct of one of the parties the other is entitled to have the marriage contract dissolved, either wholly or partially, by a decree of the competent tribunal. The late lord chancellor of England, the Earl of Eldon, expressed his opinion very freely on this subject, in the case of Lord St. John v. Lady St. John, at the time he first held the great seal, (11 Vesey, [501]*501526.) He reiterated the same opinion sixteen years after-wards, in the case of The Earl of Westmeath v. The Countess of Westmeath, (Jacob’s Rep. 126.) And as late as 1830, in a subsequent suit between the same parties in the house of lords, on an appeal from Ireland, he again took occasion to expess his astonishment that the doctrine should ever have prevailed, that the parties to a marriage contract might, by an agreement between themselves, destroy all the duties and obligations of that important and sacred relation, not only as it regarded themselves but their children also. (1 Dow & Clark’s Rep. 544.) It has, however, long since become the settled law in England, that a valid agreement for an immediate separation between a husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee. And as many of the decisions which have gone the greatest length on this subject took place previous to the revolution, they have been recognized here as settling the law in this state to the same extent. (Vide Baker v. Barney, 8 John. Rep. 73. Shelthar v. Gregory, 2 Wendell’s Rep. 422. 2 Raithby’s Vern. 386, n. 1.) I do not, therefore, feel myself at liberty to follow the opinions of the judges of the present day, as to the policy of supporting such agreements, in opposition to the law as settled by their predecessors; though I would not consent to extend the principle beyond adjudged cases. According to those cases, agreements for separations cannot be supported, either at law or in equity, unless the separation has already taken place, or is to take place immediately upon the execution of the agreement. The contract will also be considered as rescinded, if the parties afterwards cohabit or live together as husband and wife, by mutual consent, for ever so short a time. And the husband will, in that case, be restored to all his marital rights, to the same extent.. as if no separation had ever taken place. Testing the a-' greement in this case by these principles, I cannot see that-' there is any thing in the contract, as proved, to render it invalid. It appears to have been an agreement for an immediate separation ; the amount of alimony to the wife, and the particular mode of carrying it into effect, to be settled by arbitrators selected by the parties. Those matters [502]*502Were settled by the arbitrators; and the substance of their award is now established by the testimony of two of them, and by the answer of the third who was selected as the trustee for the wife. The precise terms of the written instrument afterwards prepared and which was signed by both parties and the trustee as well as by the other arbitrators, cannot now be ascertained, in consequence of the loss of the instrument by the trustee in whose hands it was placed. But as it appears a lawyer was employed to put it into form, in the absence of all proof to the contrary, I think that it may fairly be presumed there was a covenant on the part of the husband, with the trustee, to pay the annuity to the wife for life, in lieu of dower and of all other claims upon the estate of the husband either before or after his death, according to the terms of the award. The separation took effect immediately, and the parties do not appear to have lived or cohabited together as husband and wife afterwards. It is supposed by the appellants’ counsel that the provision in the articles of separation for visiting each other in case of sickness, was intended as a reservation of the right of occasional cohabitation by mutual consent. Even if he is correct in that conjecture, I do not see that it would vitiate the contract. If such an arrangement had in fact been carried into effect, by sexual intercourse after the separation, it might indeed have rescinded the agreement, notwithstanding the express stipulation to the contrary which was contained therein. But as neither party had the right to visit except by mutual consent, even in case of sickness, the reservation could not destroy the agreement if either declined to receive or return the visits of the other. And there is no evidence that the parties ever acted on that stipulation in the agreement. The answer of Bailey, the trustee, was not evidence against the executors. And if they had objected to the giving of paroi proof as to the contents of the agreement, on the ground that there was no legal evidence of its loss, I think the objection might now be sustained. But had that objection been made in season, it would have been a matter of course to have permitted the complainant to examine Bailey as a witness to prove the loss. His answer shows what probably must have been his testimony on that [503]*503subject. As this was, under the circumstances, mere matter of form, and as the paroi evidence was received without objection, I think it would be unreasonable to permit the executors to raise that question for the first time at the hearing. The vice chancellor was therefore right in declaring the complainant entitled to an allowance of $125 per annum for life, commencing at the time of the death of the testator; up to which last period it had been paid by the executors.
The next question is, whether the provision in the will was-intended to be cumulative, or only in lieu of the allowance for the support of the wife contained in the articles of separation. To understand this provision, it is necessary to inquire what was the situation of the parties after the deed of separa» ration, and at the time of making the will. The complainant alleges, in her bill, and all the witnesses agree as to this fact, that the $125 annuity was to be in lieu of all other claims upon the estate of the husband, for dower or otherwise, as well before as after his death. She also alleges that she did in fact execute a release of her dower, and all other claims, agreeably to the award. It—is evident, however, that she could not execute any valid release of her dower in the real estate of her husband in any other way than by joining with-him in a conveyance to a third person. And even if that was-done, the right of dower would again attach upon a re-conveyance of the property to the husband at any time during the existence of the marriage contract. Although it is probable that a release of dower, Sic. was contained in the deed of separation, for the purpose of putting the wife to her election if she should afterwards claim both the annuity and dower, it is very certain that her legal right of dower actually existed notwithstanding the release. And the testator was, probably," informed that such was the fact, by his legal adviser who prepared his will. It appears by the answer of the defendants that the real estate out. of which the provision in the will, in lieu of dower, was to be made, was worth aboüt $2000. The income of one third of this, invested in the manner contem-. plated by the testator, would be considerably less than half of the annuity stipulated for in the articles of separation. It is therefore hardly possible to suppose that the testator could [504]*504have expected the wife would elect to receive this inadequate provision in lieu of the annuity. And in the will the testator speaks of his wife in terms of great kindness and affection, notwithstanding the separation. I must therefore presume it was his intention to give her this as an. additional allowance for her support, or as an inducement to her to relinquish her legal claim of dower; and thus to prevent any future litigation upon the question whether she was bound to elect between the annuity and her dower. There is nothing in the will from which it can be legally inferred that the testator intended to make this provision in lieu of the annuity, as well as in bar of the legal right of his wife to dower in his estate. And this provision is not inconsistent with her right to claim the annuity; for the payment of which the defendants admit the testator left sufficient property independent of real estate. She cannot therefore be compelled to elect between the annuity and the allowance made by the will, but is entitled to both. There can be no difficulty in making a final settlement of the estate, so far as respects the annuity, without waiting for- the death of the annuitant. The executors may at once take from the estate of the testator, in their hands, a sum sufficient to purchase an annuity for the life of the widow. And if it had been asked for in the court below, I presume the vice chancellor would have directed a gross allowance, equal to the value of the annuity, to have been paid to the complainant in lieu of the payments hereafter to become due thereon. As the whole provision claimed by the wife is barely sufficient for her support, and she was compelled to come into this court to obtain that provision, it would have been unreasonable to have required her to pay her own costs. They were therefore properly charged upon the estate in the hands of the . executors.
. The decision of the vice chancellor must be affirmed with Costs; which costs are also to be paid out of the estate of the testator in the hands of the appellants. As the further proceedings in the cause, under the decree of the vice chancellor, will not probably produce any other litigation, so as to require the case to be again brought before the court, the consequential directions upon the confirmation of the master’s report be[505]*505ing all contained in the original decree, it will not be necessary to remit the cause to the vice chancellor. The decree may therefore be enrolled and carried into effect here.