1917A, 46; Crise v. Smith (1926) Md. 47 A.L.R. 467, 133 Atl. 110. See also Duttera v. Babylon (1896) 83 Md. 536, 35 Atl. 64; Pearre v. Grossnickle (1921) 139 Md. 1, 114 Atl. 725. Michigan. Randall v. Randall (1877) 37 Mich. 563; Rhoades v. Davis (1883) 51 Mich. 306, 16 N. W. 659; Owen v. Yale (1889) 75 Mich. 256, 42 N. W. 817; Wright v. Wright (1890) 79 Mich. 527, 44 N. W. 944; Dakin v. Dakin (1893) 97 Mich. 284, 56 N. W. 562; Chittock v. Chittock (1894) 101 Mich. 367, 59 N. W. 655. See also Bechtel v. Barton (1907) 147 Mich. 318, 110 N. W. 935; La Plant v. Lester (1907) 150 Mich. 336, 113 N. W. 1115. Mississippi. Wyatt v. Wyatt (1902) 81 Miss. 219, 32 So. 317. Compare Stephenson v. Osborne (1866) 41 Miss. 119, 90 Am. Dec. 358.

Irvin V. Irvin

Pennsylvania. (1895) 169 Pa. 529, 29 L.R.A. 292, 32 Atl. 445; Fennell's Estate (1904) 207 Pa. 309, 56 Atl. 875; Haendler's Estate (1923) 81 Pa. Super. Ct. 168. See also Hutton v. Hutton (1846) 3 Pa. St. 100; Dillinger's Appeal (1860) 35 Pa. 357: Hitner's Appeal (1867) 54 Pa. 110; Scott's Estate (1892) 147 Pa. 102, 23 Atl. 214; Kaiser's Estate (1901) 199 Pa. 269, 49 Atl. 79, 85 Am. St. Rep. 785, 49 Atl. 79.

South Carolina.-See Shelton V. Shelton (1884) 20 S. C. 560; Moon v. Bruce (1902) 63 S. C. 126, 40 S. E. 1030.

Virginia. Moreland v. Moreland (1908) 108 Va. 93, 60 S. E. 730; Eschner v. Eschner (1926) Va., 131 S. E. 800. See also William & M. College v. Powell (1855) 12 Gratt. 372; De Farges v. Ryland (1891) 87 Va. 404, 24 Am. St. Rep. 659, 12 S. E. 805; Ficklin v. Rixey (1923) 89 Va. 832, 37 Am. St. Rep. 891, 17 S. E. 325. But see Land v. Shipp (1900) 98 Va. 284, 50 L.R.A. 560, 36 S. E. 391.

V.

West Virginia. See Beverlin Casto (1907) 62 W. Va. 158, 57 S. E.

411.

property and estate, and thereby extinguish all rights as surviving spouse, including the right of dower." In Melrose v. Besser (1921) 77 Ind. App. 3, 133 N. E. 27, it was said: "It is the settled law, both of England and of this country, that an agreement of separation between a husband and wife whereby he provides for her separate maintenance, and she covenants to release all her claims upon his estate, is lawful, and not in contravention of public policy."

In the reported case (KELLER V. KELLER, ante, 113) the court upholds the validity of a postnuptial agreement to the effect that, on the death of either of the spouses, the survivor shall not be entitled to receive or claim any interest in the separate property of the deceased spouse, owned by the latter at the time of their marriage or acquired after their marriage. See to the same effect, Remington v. Remington (1920) 69 Colo. 206, 193 Pac. 550.

In Wyatt v. Wyatt (1902) 81 Miss. 219, 32 So. 317, the court, after stating that a debt due to a wife from her husband was barred by the Statute of Limitations, said: "It must therefore follow that the two notes for $849.33 each, given by F. A. Wyatt to Mrs. Wyatt, if in fact they were a fair and adequate consideration for the release of her interest in his estate, were also sufficient to support the release executed by her. For though Mrs. Wyatt claims that the money represented by the notes was paid by her in discharge of her claim against her husband, yet it is perfectly manifest that Wyatt regarded and treated them as a consideration of her release of all claim to any part of his estate; and, being barred by limitation, he had a right so to regard them, and the law justified him in that conclusion. That a family settlement or other similar arrangement like the one before us is valid, when based upon an adequate and fair consideration, is supported, we think, by authorities. 2 Pom. Eq. Jur. § 953; Garver v. Miller (1865) 16 Ohio St. 527; Daniels v. Daniels (1885) 9 Colo. 133, 10 Pac. 657; Switzer v. Switzer (1875) 26 Gratt. (Va.)

574. And we see no ground to question the finding and decision of the chancellor in this regard; for the sum paid Mrs. Wyatt, upon the evidence contained in this record, is probably greater than what she would have received as an heir of Wyatt's estate. Since the adoption of the Code of 1880, the Constitution of 1890, and the Code of 1892, effecting the complete emancipation of married women, and authorizing every character of suit between husband and wife, the validity of a contract between them cannot be questioned in judicial tribunals of this state; and such contracts may be enforced by one against the other."

In Moreland v. Moreland (1908) 108 Va. 93, 60 S. E. 730, it appeared that a husband and wife entered into a separation agreement which provided that the husband should pay to his wife certain sums of money monthly, and that, on the death of either party in the lifetime of the other, all the property of the deceased should pass to the person or persons who would be entitled thereto, had the other party died first. The action was one to enforce the monthly payments, and it was held that the husband's contract to make the payments was enforceable. The question most fully discussed was the validity of the covenant to live apart. The court, however, said: "Since the legislatures of various states have enacted laws whereby the wife is given the rights and powers of a feme sole almost as completely as if she were unmarried, being the unqualified right to contract and be contracted with, sue and be sued, in the same manner and with the same consequences as if she were unmarried,' the statute of no state having gone farther with respect to the rights, etc., of a married woman than our own (Va. Code 1904, § 2286a),it is now not essential to the validity of such a contract as we have before us that the provision for the wife be made through the intervention of a trustee. Professor Minor, recognizing the tendency of the courts to uphold deeds of separation, says, at p. (218), 318, 1 Minor, Inst., that such deeds are now regarded as valid in respect to

the property arrangements which they contemplate. See also 1 Bishop, Marr. Div. & Sep. §§ 1278, 1312. The contract under consideration contains a number of distinct provisions dealing with wholly distinct interests. These provisions are not, as contended on behalf of plaintiff in error, mutually dependent, but are clearly separable; therefore, even if the provision to live separate and apart were contrary to public policy and not enforceable, that would not destroy the other provisions of the contract adjusting property rights and providing a maintenance for the wife. Though the former may be rejected, the latter remains valid and enforceable."

In Pennsylvania a wife may, by postnuptial agreement, release the statutory widow's exemption as well as her right of dower in her husband's estate. In the case of Haendler's Estate (1923) 81 Pa. Super. Ct. 168, the court said: "The first contention of the appellant is that the agreement, even if valid, cannot be construed to mean that the appellant thereby relinquished her right to claim the $500 widow's exemption out of the real estate; that when she relinquished 'all right of dower and any and all other right, claim, and interest whatsoever in the real estate of said Philip Haendler, to which she might in any manner become entitled as the wife of said Philip Haendler'; it did not mean that she relinquished the right to claim her exemption out of such real estate. This contention is not well founded, for the clauses of the agreement which follow specifically covenant that the real estate of him or her so dying shall descend to and vest in his or her heirs at law, in like manner as if they had never been married,' or to such person or persons as the one so dying shall by last will and testament appoint. . . The appellant contends that, in these circumstances, the appellant, then living with her husband and not intending to separate from him, was without power to relinquish her exemption. This contention cannot be sustained. The Act of June 8, 1893, P. L. 344, gives to a married woman the same right and power that

any other person has to acquire, possess, control, and dispose of any kind of property in possession or expectancy, and to make any contracts that may be necessary, appropriate, or advantageous to the exercise and enjoyment of the rights and powers granted, excepting only certain contracts specified. Fennell's Estate (1904) 207 Pa. 309, 56 Atl. 875; Singer's Estate (1911) 233 Pa. 55, 81 Atl. 898, Ann. Cas. 1913A, 1326. There being no suggestion of concealment, fraud, or imposition when this appellant entered into the agreement in question, the covenants of the contract are to be construed just as are the contracts of any other person. She has no interest in the real estate of the decedent or its proceeds."

To be valid, a contract of a wife relinquishing rights in her husband's estate must be equitable, and must be voluntarily made by her, free from the influence of fraud or deceit. Re Cover (1922) 188 Cal. 133, 204 Pac. 583; Simmons v. Briggs (1924) 69 Cal. App. 447, 231 Pac. 604; Redwine v. Redwine (1914) 160 Ky. 282, 169 S. W. 864, Ann. Cas. 1917A, 58; Sparks v. Sparks (1926) 215 Ky. 508, 284 S. W. 1111; Wright v. Wright (1890) 79 Mich. 527, 44 N. W. 944; Bechtel v. Barton (1907) 147 Mich. 318, 110 N. W. 935. See also Chittock v. Chittock (1894) 101 Mich. 367, 59 N. W. 655; Re Bell (1905) 29 Utah, 1, 80 Pac. 615.

Thus, in Wright v. Wright (1890) 79 Mich. 527, 44 N. W. 944, the court said: "It has been settled in this state that there is no legal objection to an arrangement between husband and wife, for a fair consideration, to extinguish her right of dower.

But no court can sustain such an arrangement unless it is a fair and voluntary one. If a wife is defrauded, or improperly persuaded into such an arrangement by any fraud or device of her husband, she is entitled to full and adequate redress; and, if difficulties are raised in securing it, he or his estate-inasmuch as his heirs or devisees cannot be regarded as bona fide purchasers must bear the risks."

In Redwine v. Redwine (1914) 160 Ky. 282, 169 S. W. 864, Ann. Cas. 1917A, 58, the court said: "We then have a state of case in which the wife, who, under the statute of descent and distribution, would be entitled to an absolute estate in one half of the personalty of her husband, is induced by his threats to so dispose of it that she would get little, if anything, agreeing to accept property of the value of $15,000, in place of property of the value of $45,000, and this, too, within a few days of his death and at a time when both of them knew that the fatal disease with which he was afflicted might terminate in his death at any moment. Under these facts and circumstances, we think it clear that there was no sufficient consideration for this contract on the part of the wife, that it was not freely and voluntarily executed by her, and it should be set aside and she be given her share of the estate under the statute. It is indispensable to the validity of contracts like this that the utmost fairness and good faith should be observed by the husband, and that the consideration moving to the wife should be of such value as to reasonably compensate her for what she agreed to surrender."

In Simmons v. Briggs (1924) 69 Cal. App. 447, 231 Pac. 604, the plaintiff alleged that she was induced by the fraud and importunities of her husband to enter into an agreement containing, among other provisions, a settlement, at her death, of proceeds from her separate estate on their son. In holding that a demurrer to the complaint should be overruled, the court said: "A mere reading of the agreement shows that Dwight H. Miller obtained thereby an indefensible advantage over the plaintiff. He gave up nothing and agreed to do nothing which he was not already legally bound to do, unless it be to pay 'any street assessment which has been levied, or which may within two years next after the date of this agreement be levied or assessed, for the improvement of the street in front of one of

the lots conveyed to the trustees. On the other hand, the plaintiff surrendered all her interest in all property standing in the name of the husband; all dominion over her own separate property, except the right to dispose of it by will in the event of the prior death of her son; her right to counsel fees and alimony in the divorce proceeding then contemplated by her husband; and the right to the custody of her son or to his companionship even, except at such times as he might elect to exercise 'the right on the part of said son to visit' her and 'reside with her as long and as frequently as he may choose to do so during his school vacations each year.' The husband retained the right to do what he would with his own property, even to the extent of giving it all to a second wife or to an after-born child, while the wife surrendered her right of giving any of her property to an after-born child, if the son survived her. In view of the confidential relation of husband and wife, such overreaching on the part of the husband is sufficient to raise an inference of undue influence, under the authorities cited."

In

In Sparks v. Sparks (1926) 215 Ky. 508, 284 S. W. 1111, it appeared that, within a few days after the marriage ceremony, a husband induced his wife to go with him to his attorney's office and sign an agreement to live apart, in which she released all rights or claims by way of dower in the property of her husband and he released rights or claims in her property. holding that the agreement was inequitable, the court said: "Assuming in this case, as we must in view of the evidence, that the plaintiff entered into the marriage in good faith, the agreement is neither fair, just, nor equitable. There is no proof that the plaintiff owned any property or had any income. She was called upon suddenly and unexpectedly to sign a contract in which she waived all rights growing out of the marriage relation, without any consideration to her. The terms of the contract are so unfair as to warrant the belief that it must have been executed under influences which affected that freedom

of will so essential in every contract between husband and wife. It is due to the attorney who represented the husband to state that his conduct was above reproach. He only put in writing what he believed to be the final and considered wishes of the parties."

In the Indian Territory a separation agreement executed by a husband and wife whereby the wife released her dower interest in the lands of the husband, which made no provision for the wife's maintenance or for a division of property or contribution to her, was regarded as void for want of consideration. Re Taylor (1904) 5 Ind. Terr. 219, 82 S. W. 727, 5 Ann. Cas. 226.

In Daniels v. Benedict (1899) 38 C. C. A. 592, 97 Fed. 367, it appeared that, after living together for only a few months, a husband and wife entered into a separation agreement in which the husband agreed to pay his wife $15,000 in cash and convey to her real property of the value of $60,000, and she agreed never to demand or claim any part of the property possessed by him at the time of his death. In holding the contract to be valid, as against a contention that it was unfair, the court said: "In Walker v. Walker (Walker v. Beal) (1870) 9 Wall. (U. S.) 743, 745, 19 L. ed. 814, the wife had lived with her husband for years, and had borne him two children. He had received about $50,000 from her father's estate, and his property was worth between $300,000 and $400,000. But $50,000 was considered a suitable amount to settle upon his wife for her separate maintenance, and in lieu of dower. In the case at bar the property of the husband was worth $700,000. But the appellant had brought none of it with her. She had not assisted to earn or to save it. She had borne her husband no children, and she had lived with him less than seven months. He had a son by a former wife, and she was childless. She received $75,000, -more than $10,000 per month for the brief period she lived with her husband, and an amount sufficient, with reasonable care and economy, to support her in comfort until she died.