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Obio river as the southern boundary of the proposed states of Ohio, Indiana and Illinois, in accordance with the deed of cession to the United States, and Ohio and Illinois, have never claimed jurisdiction beyond this boundary for any purpose, nor did Indiana for thirty-five years after she became a state. The compact between Virginia and Kentucky, creates no claim for Indiana as shown by Garner's case, above cited. “There must be accurate and express treaty stipulation between the contracting parties to confer extra territorial jurisdiction."16
Conclusion.-In my humble judgment the states of Ohio, Indiana and Illinois, bave no cencurrent jurisdiction, over the main body of the Ohio river, with the states of West Virginia, Virginia and Kentucky for the foregoing reasons.
Louisville, Ky. HARDIN H. Herr.
16 Vattel, Law of Nations, 120 (6th Amer. Ed.) "Sovereignty united with domain establishes juris. diction.” Vattel, p. 165.
Since the above article was written the Kentucky Court of Appeals has decided the question discussed in it. The court holds that Indiana has not concur. rent jurisdiction with Kentucky over the Obio river. Meyler v. Wedding, 53 S. W. Rep. 808, 60 S. W. Rep. 20. The opinion was delivered by Judge White; Judge Du Relle delivered a separate and concurring opinion; Judge Hobson (Judge Burnam concurring with him), delivered a dissenting opinion. Judge Hobson argues strenuously, that by section 11 of the compact between Kentucky and Virginia, that it was meant to confer concurrent jurisdiction over the main body with the proposed states (Illinois, Indiana and Ohio). The learned judge, in his dissenting opinion, presents the view opposite to my conclusion. If any one desires to further examine the question, and read the other side of the controversy, it will be well to read the dissenting opinion. H. II. II.
a separation and continued absence and failure to support in pursuance of an agreement between the parties.
4. Pub. St. ch.176, $ 8, authorizing a married woman living separate from a non resident husband to man. age, sell and convey her property as if unmarried, does not defeat the interest of the husband in the es. tate of the wife on the death of the latter, so as to render the will of the wife disinheriting the husband valid.
The defendant, Stephen D. Nickerson, and tbe plaintiff's testatrix, Martha J. Nickerson, were married in Maine in 1891, and lived together there until April, 1892, when the testatrix informed her husband that she intended to leave him. Thereupon they agreed to separate, and he executed a writing as follows: “This is to certify that I, Stephen D. Nickerson, husband of Martha J. Nickerson, do mutually agree to separate on friendly terms, and to make no demand (neither me nor my heirs) on her, oor her property, after this date." At the same time she executed a similar writing, left him, and came to Bow, in. this county, where she resided until ber decease in 1897. Each party had some property. There was no legal cause for divorce or separation. He continued to reside in Maine, and in no way aided in her support. By the will the testatrix provided as follows: "I will give and bequeath unto my husband, Stephen D. Nickerson, of Orrington, Maine, the sum of one dollar. I make this small bequest because of his agreement to live separate from me, and to make no claim upon my estate in any way." The defendant seasonably waived this provision, and upon his petition the executor was ordered to file an inventory and give bonds. From this decree the executor appealed, for the reasons that the defendant had no such interest in the estate as to entitle him to maintain his petition, and that he was estopped by the writing above set out to claim his distributive share in her estate.
PEASLEE, J.: One question presented for decision is, whether the relation of husband and wife is one that the parties can dissolve or modify; whether the married status is so far within the control of the parties that its alteration is a result they can themselves effect, provided they agree upon the terms. It may fairly be said that the question is not settled by the decisions in this state. It has been touched upon incidentally, but in no case has it been directly involved. It therefore becomes necessary to examine the law on the subject elsewhere. Turning to other jurisdictions it will be found that the question has been the subject of much litigation, and with varied results. Not only do the cases in one state conflict with those in other states, but in the same jurisdiction the views of one generation have often been held to be erroneous in later times. There is disagreement not only as to what the law is and what the policy on this subject should be, but also as to the history of the law, and how it was held to be in former times. In order, then, to reach a satisfactory solution of
HUSBAND AND WIFE – AGREEMENT FOR
FOOTE V. NICKERSON.
Supreme Court of New Hampshire, Merrimack, March
15, 1901. 1. A contract between husband and wife, in which they agree to live separately, is void.
2. A contract between a husband and wife, which provides that they shall live separately, and which releases their claims on the property of each other both before and after death, is an entire contract, and be. ing void as to the separation, does not bar the interest of the husband in the estate of the wife.
3. Pub. St. ch. 195, $ 18, providing that the willful desertion of a wife by a husband, and a continued ab. sence and failure to support the wife for the term of three years preceding her death, shall defeat all claims of the husband in her estate, does not apply to
the question, it is essential to examine with some otherwise, because of changed conditions. Ringminuteness the historical aspect of the law appli sted v. Butler, 3 Doug. 197, 203; Barwell v. cable in this case.
Brooks, Id. 371, 373: Corbett v. Poelnitz, 1 Term The English cases decided before the Revolu- R. 5. The modern English doctrine differs tionary War are conflicting, and many of them widely from this, and an examination of its origin apparently imperfectly reported. The precise and development shows that it is a departure question here involved did not then come directly from the old law, and not merely an adaptation before the so-cailed "law courts." All causes of recognized principles to changed conditions. concerning marriage and the marital status were It was immediately after the rendition of the detried in the ecclesiastical courts, wbich also had cisions reported by Blackstone that changes in jurisdiction of the probate of wills and the ad- the law began to be made. In 1783, Lord Mans. ministration of estates. 2 BI. Comm. 496. Wbile, field, while admitting that the common law was in a narrow sense, these were not common-law otherwise, held tbat an agreeinent for separation courts, they administered the unwritten law of bound (both parties as though they were sole. the realm upon these subjects. Although the in- | The point at issue was whether the wife could be ferior judges were appointed by the ecclesiastics, sued alone. The fact that these agreements had the bishops themselves were nominated by the come into use, and by them separate estates had king. 1 Bl. Comm. 280. In all causes an appeal been given to wives, who, for that reason, ought might be taken to the king, who was represented to be liable to suit, was considered to be of conby the court of delegates, appointed by him for trolling importance. The question of the effect that purpose. "This commission is frequently of the decision upon the marital status was not filled with lords, spiritual and temporal, and al discussed. Ringsted v. Butler, 3 Doug. 197. The ways with judges of the courts at Westminster object of the decision plainly was to accomplish and doctors of the civil law." 3 BI. Comm. 66. what has been done here by legislation. It gave The law thus administered is a part of the com- , married women a limited power to contract and mon law of England. Reg. v. Millis, 10 Clark & sue and be sued. A similar result was reached F. 534, 671. To ascertain the state of the English the following year. Lord Mansfield said: “The common law as to divorce, suits for nullity, and fashion of the times bas introduced an alteration, other matters directly concerning the marital re and now husband and wife may, for many purlation, recourse must be bad to the decisions of poses, be separated and possess separate property, those courts. The doctrine of either total or -a practice unknown to the old law." Barwell partial divorce, by agreement of the parties, found | v. Brooks, 3 Doug. 371, 373. In 1794 the new no favor there. They were not permitted "to re doctrine was affirmed in the leading case of Corlease themselves by any private act of their own, bett v. Poelnitz, 1 Term R. 5. Lord Mansfield or for causes which the law itself has not pro again justified the result by reasoning similar to nounced to be sufficient and sufficiently proved." that just quoted. These cases "introduced a new Mortimer v. Mortimer, 2 Hagg. Consist. 310, 318; principle into the English law, respecting the re2 Rop. Husb. & Wife, 267. The rule that sepa lations of husband and wife; but a principle that ration agreements are wholly void, seems to have was familiar to the Roman law, and to the municbeen ad hered to from the earliest times until the ipal law of most of the nations of Europe." 2 court was abolished, in 1857, by the statute of 20 & Kent, Comm. 159. It was natural that this prin21 Vict. ch. 85. Smith v. Smith, 2 Hagg. Ecc. ciple should appeal to Lord Mansfield, whose Sapp. 44, note; Westmeath v. Westmeath, Id. 1; work is so distinguished for its up-building of Id., 4 Eng. Ecc. R. 258; Barlee v. Barlee 1 Ad. commercial law. So long as he remained upon dams, Ecc. 301, 305; Nash v. Nash, 1 Hagg. the bench these cases were followed. AccordConsist. 140.
ingly, in 1788, Mr. Justice Buller said that sepaThe English common law relating to this sub. ration deeds were valid when fairly entered into, ject (which became the common law of this state, and that courts of equity bad jurisdiction to enso far as applicable to conditions here) was that force them. Fletcher v. Fletcher, 2 Cox, Ch. 99. as to the settlement of estates, suits of nullity of In another case he said that it had been decided marriage, and such limited divorce as was then that by agreement the parties could make the granted, a separation agreement was wholly wife a feme sole as to everything but the right of void. It was refused recognition .in chancery, | remarriage. Compton v. Collinson, 2 Brown, Ch. and even in the law courts its efficacy was denied 377. The case went off upon another point, and by the later cases. The only case actually de. the cases upon this question are not cited. ciding that such an agreement was a valid modi. Acquiescence in the doctrine of Corbett v. Poel. fication of the marriage contract was Rex v. nitz was by no means uniform. The case “gave Mead, 1 Burrows, 542, and this was not followed rise to great scrutiny and criticism. It was conin the cases in 2 W. Bl. Contemporary judges sidered as a deep and dangerous innovation upon and text writers understood tbis to be the state of the ancient law." 2 Kent, Comm. 159. Lord the law. It was so laid down by Lord Mansfield, Mansfield retired in 1788. His successor, Lord who had been chief justice of the king's bench Kenyon, had passed most of his life as a law since 1756, and who, shortly after the decision of writer for more successful practitioners, and as a these cases, thought that the law should be held judge of an inferior court in a remote part of the
kingdom. His reverence for the law was as great acquired under a valid contract. In harmony as Mansfield's devotion to progressive ideas. The with this view, the same judge held ibat the fact effect of the change is plainly traceable in the that the husband was living in adultery was a bar decisions upon this subject. In 1790 the case of to his suit. Wyndham v. Wycombe, 4 Esp. 16. Compton v. Collinson, supra, having been sent While this decision was erroneous (Cross v. Grant, out from chancery for the opinion of the court of 62 N. H. 675, and cases cited), it is of importance common pleas upon the law, Lord Loughborough as showing that Weedon v. Timbrell was not said that the question of a separated wife's liabil. based upon the proposition that a separation ity to suit was still an open one. Compton v. agreement is a valid contract. In 1800 the quesCollinson, 1 H. Bl. 334. In the same year the tion involved in Corbett v. Poelnitz came before ecclesiastical court again declared its adherence | Lord Eldon. He refrained from deciding it, beto the doctrine heretofore noticed. Nash v. Nash, cause it was then pending in a case which was 1 Hagg. Consist. 140. In 1792 the chancery court, soon to be argued before al! 12 judges; but he refollowing the dictum of Justice Buller in Fletcher viewed the cases, and manifestly was of the opinv. Fletcher, decreed specific performance of ion that the decision of Lord Mansfield was unarticles of separation, in the face of the husband's sound, and that Rex v. Mead, 1 Burrows, 512, offer to return and live with his wife. Guth v. was not an authority for the validity of separation Guth, 3 Brown, Ch. 614. This case was never agreements. Beard v. Webb, 2 Bos. & P. 93. In considered sound. Soon after its decision Lord the case there referred to the question was fairly Loughborough denied equity jurisdiction of suits presented for decision. It was twice argued beinvolving the marital relation. Legard v. John fore all the judges, except Justice Buller, who son, 3 Ves. 352, decided in 1797. Again in 1792, was incapacitated by the illness of which he died Justice Buller expressed his adherence to-the law shortly thereafter. All concurred in the opinion as held by Lord Mansfield. A writ of habeas of the chief justice, overruling Corbett v. Poelcorpus was directed, at the instance of J. Grey | nitz. Lord Kenyon said: “If * * * the goose, to bring up the body of his wife. It was parties were competent to contract at all, it would alleged that she was detained by the defendant, then become material to consider how far a comand living with him in adultery. One defense ! pact can be valid, which has for its object the set up, but not fully pleaded, was a separation contravention of the general policy of the law in contract, and Rex v. Mead, 1 Burrows, 542, was settling the relations of domestic life, and wbich relied upon. Justice Buller said: "If this case the public is interested to preserve; and which, turn out on further examination to be like that in without dissolving the bond of marriage, would Burrows, I am strongly inclined to think that place the parties in some respects in the conwould be an answer to the writ. But that is not dition of being single, and leave them in others at present made out." Rex. v. Winton, 5 Term subject to the consequences of being married, and R. 89. The chief justice was absent when this which would introduce all the confusion and indecision was rendered. The question was first convenience which must necessarily result from considered by Lord Kenyon in 1794, when he de so anomalous and mixed a character. In the clared that, if changes in the law were needed, course of the argument some of these difficulties they must be made by the legislature. The au were pointed out, and it was asked whether, after thority of Corbett v. Poelnitz was doubted, but such an agreement as this, the temporal courts the non- liability of the defendant was finally put could prohibit it if either were to sue in the eccleupon other grounds. Ellah v. Leigh, 5 Term. R. siastical court for the restitution of conjugal 679. This was after Justice Buller bad retired rights; whether the wife, if she committed a from the king's bench, to accept a seat upon the felony in the presence of her husband, would be common bench. Two years later, when speaking liable to conviction; whether they could be witof the same subject, Lord Kenyon said: “We nesses for or against each other; whetber they must not, by any whimsical conceits, supposed to could sue and take each other in execution? And be adapted to the altering fashions of the times, many other questions will occur to every one, to overturn the established law of the land. It de which it will be impossible to give a satisfactory scended to us as a sacred charge, and it is our answer. For instance, it may be asked how it duty to preserve it." Clayton v. Adams, 6 Term can be in the power of any persons by their priR. 604. A decision of his in 1793 has sometimes vate agreement to alter the character and condition been referred to as inconsistent with tbe views which by law results from the state of marriage expressed in the cases just cited. In a suit for while it subsists, and from thence to infer rights the seduction of a wife, the defense was set up of action and legal responsibilities, as consethat before the commission of the acts complained quences following from such alteration of charof the husband and wife had voluntarily sepa acter and condition; or how any power, short of rated. It was decided that this went to the merits that of the legislature can change that which, by of the action. Weedon v. Timbrell, 5 Term R. the common law of the land, is established as the 357. The real ground of the decision was that course of judicial proceedings." Marshall v. Rutthis action is not maintainable by one who has ton, 8 Term. R. 515. Chief Justice Eyre of the comabandoned the right upon which the action is mon pleas, who retired shortly after the first argufounded. It does not decide that rights bad been ment of the case, also concurred in this opinion.
It was thus that the law stood until the death court will not carry into execution articles of of Lord Kenyon, in 1802. During that year a case separation between husband and wife. It recogarose, involving the validity of an agreement be nizes in them no power to vary the rights and tween George Chambers, his wife, and certain duties growing out of the marriage contract, or trustees. The husband agreed that in case of a to affect, at their pleasure, a partial dissolution of future separation the wife might live where she that contract. It should seem to follow that the chose, without molestation from him, and that he | court would not acknowledge the validity of any would make certain payments to the trustees for stipulation that is merely accessory to an agreeber. A separation took place. The payments ment for separation. The object of the covenant were not made, and the trustees sued on the cove between the husband and the trustee is to give nant. The case was argued upon the general in efficacy to the agreement between the husband validity of separation agreements, and especially and the wife; and it does seem rather strange upon the point that an agreement looking to a that the auxiliary agreement should be enforced, future separation is illegal. Lord Ellenborough, while the principal agreement is held to be conC. J., held the contract to be valid, upon the trary to the spirit and the policy of the law." He ground that the question which has been agi also quotes from Lord Eldon, as follows: "If tated appears to have been laid at rest for a long this were res integra, untouched by dictum or deperiod by repeated decisions and the uniform cision, I would not have permitted such a covepractice of the courts." So far as the agreement nant to be the foundation of an action or a suit in related to a future separation, he declared it was this court. But if dicta have followed dicta or deno worse than others which had been upheld. cision has followed decision, to the extent of setRodney v. Chambers, 2 East, 283. The case of tling the law, I cannot, upon any doubt of mine Nicholls v. Danvers, 2 Vern. 671, was relied upon as to wbat ought originally to have been the deas authority for the proposition. It is true that, cision, shake what is the se.tled law upon the taking that case as reported by Vernon, such a subject." St. John v. St. John, 11 Ves. 526. Acholding might, perhaps, be inferred. There was cordingly, effect was given to an appointment by such an agreement between the parties, but the a separated wife of property, deeded by the huscourt did not enforce it. Proceedings for cruelty band to trustees in consideration of their agreebad been had in the ecclesiastical court (1 Fonbl. ment to save him barmless from his wife's debts, Eq. 97, note), and this was merely an application etc. Shortly thereafter the ecclesiastical court for alimony, in accordance with the practice in again reiterated its adherence to the view that the chancery courts after the Restoration. Thus, these agreements are void. "These courts, therein two years' time, at the first term presided over fore, to which the law has appropriated the right by Lord Ellenborough, the conservative doctrines of adjudicating upon the nature of the matrimolaid down by Lord Kenyon were disapproved of, nial contract, have uniformly rejected such coveand a decision was rendered of so radical a nature nants as insignificant in a plea of bar, and leave it that it finds no support in the cases preceding it, to other courts to enforce them, so far as they and has not since been followed as an authority. may deem proper upon a more favorable view (if A side light upon this case is seen in the refer- they entertain it) of their consistency with the ence to the wife as “the Honorable Jane Rodney," principles of the matrimonial contract." Morand to the husband as “George Chambers." In timer v. Mortimer, 2 Hagg. Consist. 310, 318. In the following year Lord Eldon expressed a strong 1821 a bill in equity was brought for the canceldisapproval of Rodney v. Chambers, and of the lation of separation deeds upon the ground that whole doctrine of separation agreements. He they were contrary to the policy of the law and suggested, however, that the practice of uphold void. The bill was dismissed for the reason that, ing them to a limited extent (that is, as to prop if the plaintiff's contention was sound, it was as erty rights might have become too firmly estab good a defense to the deed at law as in equity. lished to be overturned. The case went off upon Lord Eldon, again considering the question at a question of pleading, and was then settled by some length, said: "I perceive that it seems to the parties. St. John v. St. John, 11 Ves. 526. In have struck every one as extraordinary that such 1804 the master of the rolls recognized the valid deeds should ever have been supported. * * * ity of an agreement to pay an annuity to a gepa It has always seemed to me very difficult to hold rated wife, without discussion of the question. these deeds legal. It seems to be admitted that Cooke v. Wiggins, 10 Ves. 191. In 1806 the com- I a mere agreement to live separate is one that mon pleas, by a divided court, held that an un would not be deemed valid; and it seems strange, fulfilled agreement to pay a separate allowance as Sir Williain Grant observes, tbat, if the pridid not free the husband from liability for neces mary object be vicious, these auxiliary provisions saries thereafter furnished to his separated wife. should be held good, and thereby the objects Nurse v. Craig, 2 Bos. & P. (N. R.) 148. Sir which the law objects to should be carried into James Mansfield, C. J., dissented, following the effect.” Westmeath v. Westmeath, Jac. 126, 141, reasoning of Lord Mansfield in the earlier cases. | 142. Other chancery judges entertained different In Worrall v. Jacob, 3 Mer. 256, 268 (decided in views. Upon demurrer to a bill brought to re1817), Sir William Grant, master of the rolls, cover arrears of an annuity due under a separasaid: "I apprehend it to be now settled that this tion agreement, Richards, lord chief baron of the
exchequer, said: “The question is not what the law ought to be, but what it is; and the opinions of judges, however great and learned, are not to be put in competition with decisions determining the point and settling the law." Baron Graham said: “The language of regret is certainly found to be used by many of the judges; but the law is clearly established, and such demands have been constantly enforced.” Notwithstanding this declared confidence in the settled state of the law, the chief baron also said that the case involved "a grave question, of too great importance to be disposed of on demurrer." Ros y. Willoughby, 10 Price, 2, decided in 1822. Cases following soon after this held that separation deeds are valid, so far as they relate to an annuity for the wife (Jee v. Thurlow (1824), 2 Barn. & C. 547; Wilson v. Mushett (1832), 3 Barn. & Adol. 743); but invalid if the separation does not take place until a future day. Hindley v. Westmeath (1827), 6 Barn. & C. 200. In 1835 the question first came before the house of lords. A Scotch nobleman had obtained a divorce from his wife in the courts of that country, and one question was whether the wife was within the jurisdiction of the court, and duly served with process. The decision turned upon the fact as to her residence, and, as she was living apart from ber husband under a separation agreement, it was argued that she was no longer domiciled where he was. In speaking of the agreement, Lord Brougham said: “What is the legal value or force of this kind of agreement in our law? Absolutely none whatever, in any court whatever, for any purpose whatever, save and except only one,-the obligation contracted by the husband with trustees to pay certain sums to the wife, the cestui que trust. In no other point of view is any effect given by our jurisprudence, either at law or in equity, to such a contract. No damages can be recovered for its breach; no specific performance of its articles can be decreed. No court, civil or consistorial, can take notice of its existence. So far has the legal presumption of cohabitation been carried by tbe common-law courts tbat the most formal separation can only be given in mitigation of damages, and not at all as an answer to an action for criminal conversation, the ground of which is the alleged loss of comfort in the wife's society; and all the evidence that can be adduced of the wife's living apart, and all the instruments that can be produced binding the husband to suffer the separate residence of his wife,-pay, even when be has for himself stipulated for her living apart, and laid her under conditions that she should never come near him,-all is utterly insufficient to repel the claim which he makes for the loss of her society, without doing any act either in court or in pais to determine the separation agreement." Lord Lyndeburst said: “The strongest articles of separation may be drawn up and signed with full acquiescence of the husband and wife, yet he may sue her and she may sue him notwithstand. ing." Warrender y. Warrender, 2 Clark & F.
488, 527, 561. In the same year the case of Waite v. Jones, 1 Bing. N. C. 656, was decided in the court of common pleas. The plaintiff sued for money agreed to be paid in consideration of bis executing a deed of separation from his wife. The defense was that the promise to execute the deed was illegal, and vitiated the whole agreement. The court held that agreements for future separation, or promises of Spayments to induce the same, are illegal; but that an agreement for a present separation may be valid. It was admitted that a promise to separate, in consideration of a sum of money, was not binding; but this agreement was upheld because it might be inferred that the separation bad already taken place, and it did not affirmatively appear that this promise induced such action. Upon appeal to the exchequer chamber, the decision was af. firmed by a divided court. Lord Denman, C. J., dissenting, disapproved of separation deeds, and said: “If I could venture to lay down the principle which alone seems to be safely deducible from all these cases, it is this: That when a busband bas by his deed acknowledged his wife to have a just cause of separation from him, and has covenanted with her natural friends to allow her a maintenance during separation on being relieved from liability to her debts, he shall not be allowed to impeach the validity of that covenant." Jones v. Waite, 5 Bing. N.C.341. The judgment was affirmed in the house of lords, and the contract was upheld in a brief opinion. Jones v. Waite (1842), 4 Man. & G. 1104.
From this time on it seems to have been the law of England that such contracts are enforceable except as to the one provision, which is of their essence. Courts accepted the rule, while acknowledging the lack of reason for it. "It is in vain to regret the perplexities in wbich courts have found themselves involved by enforcing the minor and auxiliary parts of the agreement to separate, while they profess to repudiate the principal and essential part and motive of it." Frampton v. Frampton (1841), 4 Beav. 287, 293. In 1848 the house of lords held unequivocally that a separation agreement is a valid contract, and specific performance of the covenants of the deed was decreed. Wilson v. Wilson, 1 H. L. Cas. 538. The case goes solely upon the ground of recent decisions, admitting that the holding is opposed to earlier precedents. The deed was made to settle the wife's suit for nullity in the ecclesiastical court, and the case inight have been distinguished on tbat ground. Shortly after this Lord Romilly, master of tbe rolls, enjoined the breach of a cov. enant not to interfere with the wife, who was liv. ing separate. The upholding of separation deeds "in a great number of cases" is the only reason assigned for tbe decision. Sanders v. Rodway (1852), 16 Beav. 207. The doctrine of these later cases was not wholly approved of, and in 1858 the court declared that the very basis of the contract was an agreement which could not be enforced in any court. Vansittart v. Vansittart, 2 De Gex