DuBois v. Coen (100 Ohio St. 17, 1919)

Jones, J.

The demurrer to the answer conceded the truth of the allegations contained in that pleading. For the purposes of this case it may also be conceded that the contract in question between the husband and wife was fair and reasonable. While still cohabiting together as husband and wife, each released to the other all claims of dower, distributive share, or other statutory allowance, which one might derive from, the other under the laws of this or any other state. The consideration to be paid to the wife was the sum of $25,000, evidenced by five promissory notes, the last of which is the subject of this suit.

The question therefore arises, Can a husband and wife during coverture and without contemplating separation enter into a valid legal contract whereby one releases to the other all claims in the other’s, property, during lifetime or after death, in consideration of money paid or promised to be paid therefor ?

The subjects of dower, distributive share and mansion house rights are each of them creatures of statute law. While the marital relation is contractual, those statutory provisions made for the benefit of the husband and wife do not have their basis in contract, but are purely incidental to the marital relation. They are creatures of the sovereign, which, at any time before vesting, may be changed or abrogated by the legislative will.

“Dower is not the result of contract, but is the creature of positive law, founded on reasons of public policy, and subject, while it remains inchoate, to such modifications and qualifications as legislation, for like reasons of public policy, may see proper to impose.” Weaver v. Gregg, 6 Ohio St., 547, 549.

The principle here stated applies not only to dower but to any other provision made for the benefit of husband and wife under the laws of descent and distribution.

At common law a married woman could enter into no such agreement with her husband as is contained in the pleading here involved. However, it is insisted that enabling statutes have been passed by this state which permit the husband and wife, during coverture and without a view to separation, to make such mutual releases as are involved here.

Our state legislation has gradually eliminated married women from the fetters that bound her at common law. It first provided a series of laws which permitted a married woman to deal with her separate estate as if she were a feme sole. These laws were superseded by an act “To define the rights and liabilities of husband and wife,” passed March 19, 1887 (84 O. L., 132). It brought within its scope various subjects which related not only to the marital relation between the parties, but also fixed the rights of each in the property of the other after death. It was a legislative codification and grouping of the statutes in one single act, whereby all of the relations, both property and marital, were embodied within its scope. It lifted the wife above the limitations which restricted her contractual powers and put her upon a plane with her husband, thereby giving to her all the freedom of contract which he himself has. However, it is important,to note that the husband and wife act then adopted not only contained provisions for jointure and for dower in the lands of the other at decease, but also contained provisions stipulating the distributive share each would receive from the personal property of the other.

In this case the executor contends that by that act the legislature adopted an enabling provision which permits either husband or wife, not contemplating separation, to enter into a contract of this character during coverture. That provision is now Section 7999, General Code, and is as follows: “A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.”

Were this section standing alone the contention of the executor might be sustained, although the courts of some states have declined to hold that similar acts authorize husband and wife, during coverture, to make a valid legal contract releasing dower and distributive share.

Whether Section 7999, General Code, is broad enough to grant to cohabiting persons the power to make these mutual releases during coverture may be doubtful. However, we are constrained to the view that the right of contract given to the husband and wife under the section named has been limited by legislation relating to husband and wife found in other sections of the code. One of these limitations is contained in Section 8000, General Code, which reads as follows: “A husband and wife can not by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation.”

What were these “legal relations” that might be changed by the parties? Where the meaning of a statutory term is doubtful, recourse may be had to the title of the act as an aid in its construction and for the purpose of ascertaining the legislative intent. The purpose of this act as disclosed by its title was “To define the rights and liabilities of husband and wife.” Among other rights and liabilities brought within the scope of the act was the liability of their respective estates to respond to dower and distributive share.

A contract for mutual release by husband and wife in the property of the other after decease is an alteration of their legal relations. As stated before, dower and distributive share were brought within the scope of the act controlling the relations of husband and wife. These provisions were incidental to their marital relation, and were legal in their character. It was the undoubted policy of the legislature, by the adoption of this section, not only to preserve the unity of the marital relation, but to preserve intact the property provisions which were made for one after the decease of the other. If the legislature had intended merely to limit their right of contract respecting their marital relations, it would have used the term “marital;” but having incorporated within the act the term “legal,” which here embraces more than “marital,” it would seem that the legislature intended that there should be no alteration either of marital or property relations in the nature of expectancies, except in case of immediate separation.

The engrafting of the exception permitting such contracts to be made upon immediate separation plainly evinces the legislative policy of denying to a husband and wife living together the right of absolute contract with reference to their expectancies in each other’s estate. It was not intended as an authorization to traffic in property of this character, thereby disturbing domestic felicity and the peaceful conjugal relations naturally existing between husband and wife living together. The legislature had incorporated in the husband and wife act of 1887 a provision by which either might be barred of dower in the real property of the other by an agreement executed during coverture conveying real property by way of jointure. (Section 8608, General Code.) This could be done although the conjugal relation continued to subsist. However, in such case either husband or wife could waive title to the property and claim dower in the estate of the grantor. If, as claimed, a cohabiting husband and wife had the unlimited right of contract with respect to dower, this section would have no effect. As to them, however, the statute has full force and effect. Notwithstanding their contract the husband and wife under its terms can waive jointure and claim dower.

In view, therefoi e, of the provisions of the husband and wife act of 1887, and especially of the limitation in Section 8000, General Code, we hold that the mutual releases executed by the parties were invalid in law and that no recovery can be had in a legal forum in this state upon a promissory note which was a partial consideration for such release. What the equitable rights of the wife would have been in the estate of her husband had she survived him and claimed dower and distributive share, we do not now decide. Whether the husband and wife act would permit such a contract to be made in a case where separation occurs we do not now decide, as that situation does not present itself in this case.

In sustaining the demurrer to the answer the courts below erred, and their judgments are reversed and judgment here rendered in favor of the plaintiff in error.

Judgments reversed.

Matthias, Donahue and Robinson,,JJ., concur.

Johnson, J., concurs in the judgment.

Nichols, C. J., and Wanamaker, J., dissent.

Nichols, C. J.,

dissenting. My conception of the law of the instant case is so radically different from the view entertained by the majority of the court, and the importance of the question involved is so obvious, that for the second time since occupying a position on this bench I am impelled to set out in some detail the basis of my dissent.

The judgment entered herein destroys absolutely all post-nuptial contracts made between husband and wife living together, and throws grave doubt on the validity of such contracts between husband and wife living apart, but still undivorced. There is every reason to believe that ‘there are many executory contracts of both varieties existing in Ohio.

In my judgment, any fair construction of Sections 7999 and 8000, General Code, would require an affirmation of the judgment of the court of appeals of Belmont county, which in its turn had affirmed the judgment of the court of common pleas of the same county.

If Section 7999 átood alone, all would agree that the contract entered into between defendant in error’s intestate and her husband was a valid transaction and should be enforced.

The limitation set forth in the first clause of Section 8000, General Code, is given so broad and controlling an effect in the majority opinion as to substantially nullify the grant of power in Section 7999, General Code. This clause reads “a husband and wife can not by any contract with each other alter their legal relations.” A majority of the court are giving the language of this clause such construction and such force as to ignore the real legislative purpose of Section 7999, General Code, while the construction I seek to give it, I most respectfully submit, gives effect to both sections and makes out of the two sections a harmonious whole.

It is well to recall the underlying motive for the passage of the “Married Women’s Act” of 1887.

As a matter of history the legislation was heralded at the time as the emancipation .of the female in her relation not only to her husband’s property but also as to what was theretofore termed her “separate estate.” In respect to each other’s property, husband and- wife were put on an absolute equality. The wife in respect to her power of entering into contracts generally was not only to be on a parity with men, but she was endowed with all the contractual privileges of a feme sole.

The Old World theory of the husband being “lord and master” was supposedly given a knockout blow. True, it was provided by Section 7996, General Code, that '“the husband is the head of the family,” and that the choice of any reasonable place or mode of living for the family was his, to which “the wife must conform,” but here the dominion of the male was to cease.

It is to be admitted, of course, that the judgment of the court in case at bar does not in principle disturb the equality of the law as between husband and wife, for manifestly the disability laid upon the woman here would in sóme other case be visited on the man; but in practice an inequality is created. In the greater number of instances the woman would be the beneficiary of such contracts, for the reason that in post-nuptial contracts, as a rule, it is the man and not the wotfian that is the owner of the property in respect to which the contract is being made. Therefore, if it was the intention of the general'assembly to legalize contracts such as we have here under review, the judgment of this court in invalidating them constitutes a backward step in respect to the domestic relations.

The matter in hand is wholly one of interpretation of the legislative mind. Direct authority in Ohio or elsewhere is practically negligible.

It would be hard to conceive of language more simple and comprehensive than that found in Section 7999: “A husband or.wife may enter into any agreement or transaction with the other * * * which either might if unmarried.” So it is written. When the defendant in error’s intestate, Sarah' A. DuBois, the wife oí John DuBois, engaged to accept $25,000 in full of all her claims as the widow, should she survive her husband, she was acting wholly within the letter of the law. If this was the “all in all” of the law, everyone would concede the validity of the note in suit, just as much as if Sarah A. DuBois had loaned John DuBois $5,000 and taken his promissory note as an evidence of the debt.

No ambiguity exists, no failure to clearly express the purpose oí the general assembly. And, too, there can be no question raised as to the authority of the general assembly to legislate on the subject. Marriage is a civil contract; it is a creature of the law. The creator can impose such reasonable conditions as in its wisdom seemeth proper. It could provide that no engagement or contract between husband and wife could have binding force or effect. On the contrary, it opened wide the doors, and empowered them to contract with each other as though they were strangers. After granting this sweeping power, with all the radical change it suggested, it is to those familiar with the construction of our laws easy to understand how the next sueceeding section, (8000, General Code), was given form and substance. To the mind of the cautious legislator the thought no doubt occurred that, under the terms of Section 7999, General Code, husband and wife might possibly engage- with one another to dissolve the marital relation, and so, ignoring -the statutes on the subject of divorce, create a condition in society satisfying the most advanced advocates of free and easy marriage and divorce. The simple, statement of such a possibility must have suggested the imposition of a statute of limitation and restraint. Thus Section. 8000, General Code, was conceived and enacted into law. By its express terms contracts in alteration of their legal relations were forbidden. In the light of Section 7999, what can we say is the real meaning of “alter- their legal relations” as employed in Section 8000? We cannot ascribe to the general assembly the purpose of giving in one word and withholding in the next. I am confident that the term in question was used not with regard to property, or contracts in respect thereto, but had to do wholly with the marriage status. It was as if the general assembly had said to the husband and wife, for whose joint benefit it was legislating, you are -free, contract with one another or with strangers. Buy one another’s property, loan one another of your money, engage in business generally. Do these things as if you were unmarried. All these rights and privileges are yours — but in one thing — one sacred and important matter, you cannot act. You cannot of your own choice or whim dissolve the contract which has made you man and wife. The law that authorized the taking of the marriage vows reserves to itself the power of canceling the contract of marriage.

At this point, let us visualize the scene in the legislative halls. Some legislator, wiser than his fellows, suggests that perhaps the brake is being set a little too tight, and proposes that while divorce ought not be the subject of mutual agreement, and accomplished at will, yet there ought to be some provision that something less than a divorce, for instance an immediate separation, might well be the subject of mutual agreement. This exception is thereupon incorporated and becomes a part of Section 8000, General Code.

There is another section of the General Code which emphasizes the intention of the general assembly to give to a married person the full and unrestricted right to contract with respect to property without any of the fetters theretofore existing. Section 8001 provides that “a married person may take, hold and dispose of property, real or personal, the same as if unmarried.” This section immediately follows the section prohibiting the alteration of the legal relations of man and wife and constitutes an express reiteration of the authority granted in Section 7999, General Code, and is, I believe, a special legislative construction of the term “can not * * * alter their legal relations,” in line with the views expressed in this dissenting opinion.

I desire to call special attention to Section 8608, General Code, formerly Section 4189 of the Revised Statutes of Ohio. As a part of the act under review, Section 4189 was repealed and reenacted in identical terms. There could have been no possible reason for thus repealing and then reenacting a section of our statutes except to accommodate the husband’s interest in the wife’s land, and all rights respecting the same, to that of the wife in the husband’s land. A new situation had been created. The estate by courtesy was abolished and a universal dower estate established.

Section 8608, General Code, expressly authorizes husband and wife to enter into a contract with respect to dower interest in the property of the other. Under this section the conveyance, so far as the grantor is concerned, is an absolute-and irrevocable one. The grantee alone has power to render it nugatory by demanding dower and waiving title to the property so conveyed.

Section 8608, General Code, then directly authorizes husband and wife to enter into a contract with respect to each other’s property, which Section 8000 just as directly forbids, as the same is construed by a majority of the court.

If it be granted that there is some doubt as to the'meaning to be given the term “can not * * * alter their legal relations,” I repeat that there is no doubt as to the meaning of Section 7999, General Code. These two sections are dealing with the same general subject, and I therefore am justified in invoking the well-known rule of construction that if there be found two conflicting provisions of the law, one ambiguous the other clear, the provision clearly setting forth the legislative intention shall be preferred and the ambiguous section disregarded.

Enough on the question of intention and construction. For a moment let us enter the wider field of public - policy. I insist that the effect of the judgment of the majority will result in a more frequent resort to the divorce courts by husbands and wives dissatisfied with respect to property. Among the causes leading to marital troubles, none is more prolific than disputes having to do with property rights both in praesenti and in futuro. These controversies are often subject to adjustment through contracts of the kind here under review. Such parties are now informed that all such contracts are invalid, and if validity is to be had, as a condition precedent you must first be divorced.

Many married péople are able to avoid the divorce courts, choosing to endure hardships, sometimes for the sake of mere appearance, and more often for the sake of sparing their children added sorrow and disgrace. I greatly fear that we are making it harder for people so situated, and the complication now added will prove to be the traditional “straw that broke the camel’s back.”

It is my belief that the general assembly in striking the almost feudal shackles from women, in the “Married Women’s Act” of 1887, was actuated by a strong and wholesome purpose of thwarting instead of encouraging divorce.

For the reasons hefe assigned, I favor the affirmation of the judgments of the lower courts.