
    Olive O. Sawyer, et al. v. Sarah Emeline Churchill and Zebedee P. Churchill's Administrator.
    October Term, 1904.
    Present: Rowell, C. J., Tyler, Start, Watson, Haselton, and Powers, JJ.
    Opinion filed February 20, 1905.
    
      Husband cmd Wife — Contract in Fulfilment of Ante-Nupticd Contract — Specific Performance- — Contemplated Separa- ■ tion — Public Policy — "To Wit" in Contracts — Consideration- — Widow’s Waiver — V. S. 2532.
    
    When a woman, by her written and sealed contract expressed to be ' in consideration of $300, paid her by her husband, released him from all claims which she, as' his wife,1 might have upon him, that release exhausted the consideration; and a subsequent provision of said contract, whereby “for said consideration” she conveyed to his children all interest which, as his widow, she might have in his estate, was without consideration.
    The phrase “to wit,” when used in a recital in a written contract, in referring to a date, has no materiality.
    The widow’s waiver, contemplated by V. S. 2532, is of some provision the benefit of which she is to get upon or after her husband’s death.
    The State is, on grounds of public policy, interested in the permanency of the marriage relation; and courts of equity will not enforce the performance of contracts tainted with an understanding, contemporaneous with the marriage, looking to a possible or probable future separation, and tending to effect such a separation.
    A court of equity will not enforce a written and sealed contract, executed and delivered by a woman to her husband within five months after their marriage, whereby, in consideration of $300, paid her by him, she releases him from all claims which she, as his wife, may have upon him, and which recites that it is in fulfilment of a contract made between them on their wedding day in which she agreed to so release him for $300.
    
      Appeal in Chancrry. Heard on Sarah Emetine Churchill’s demurrer to the bill, at the'December Term, 1903, Windsor County, Munson, Chancellor. Demurrer sustained, and bill dismissed, as to the demurrant, with costs.
    The orators appealed.
    The contract sought to be enforced is as follows:
    “Whereas I, Sarah E. Churchill, have heretofore to wit: on the 21st day of January, 1898, entered into a contract with Z. P. Churchill, my husband, in which for the sum of Three Hundred Dollars I agreed to release him from all claims which I, as his wife might have upon him, and whereas said sum has been to- me in hand paid, and the receipt of which I hereby acknowledge.
    Now therefore, I, Sarah E. Churchill, in consideration of said sum of three hundred dollars, do hereby release said Z. P. Churchill from all claims which I as his wife may have upon him, and hereby agree to maintain myself in sickness or in health so that neither I nor any one in my name or behalf shall hereafter have any claim upo-n him whatever.
    And I further, for said consideration, do hereby release, assign and convey to Olive O. Sawyer, Mark Z. P. Churchill, Addie B. Crowell, Edna M. Bradley and Lucy L Fletcher, children of the said Z. P. Churchill, or their heirs, all right, title, interest or claim, which I, the said Sarah E-, may have as a widow in or to the estate of said Z. P. Churchill, including right of dower or homestead therein.
    In witness whereof I hereunto- set my hand and seal at in the State o-f Vermont, this 7th day of June, A. D. 1898.”
    Sarah E. Churchill. (E. S.)”
    
      Gilbert A. Davis for the orator.
    
      The orator’s only remedy is in equity. Mann v. Mcrnn Est., 53 Vt. 48-56; Graves v. Wakefield, 54 Vt. 313; Meech v. Estate of Meech, 3 7 Vt. 414; Chaffee v. Chaffee, 70 Vt. 231.
    The contract has been fully performed on the part of Zebedee, and the parties cannot be placed in statu quo. Coolidge v. Brigham, 1 Met. 547; Allen v. Edgerton, 3 Vt. 442; Hammond v. Buckmaster, 22 Vt. 378; 2 Parsons on Contracts, 679; Beed v. Blanford, 2 Young & J. 278; Norton v. Young, 8 Greenl. 30.
    
      Hunton & Stickney for defendant.
    The agreement is against public policy, and not binding upon the widow, if she elects to waive it. Whether she may waive it is discretionary with the probate court. Bethel Sch. \. Sheldon, 71 Vt. 95; Mcmn v. Mann, 53 Vt. 48.
   HasELTon, J.

This is a bill in chancery brought by the children of Zebedee P. Churchill, deceased, against Sarah Emeline, his widow, and against the administrator of said Zebedee. The bill sets up' among other things, that said Sarah Emeline was the third wife of said Zebedee and not the mother of any of his children; that she was married to him January 21, 1898, and that she lived with him only about five months, when by mutual consent a separation took place, and that they ever after lived apart from each other, the Said Zebedee dying December 17, 1902; that after said separation, said Sarah Emeline did nothing towards the support and care of said Zebedee, who was an old man in need of care, .comfort, and assistance.

The bill further states that June 7, 1898, which was within five months after the marriage, the said Zebedee and the said Sarah Emeline entered into a certain written and sealed contract which is set forth. This instrument, however, recites a contract made between, husband and wife on their wedding day, by virtue of which the wife should release the husband from'all claims which she, as wife, might have upon him, upon the payment by him to1 her of the sum of $300.00. The instrument further recites the payment of the $300.00 and proceeds as a release from her to him. of all claims upon him as wife, and an agreement to maintain herself in sickness or in health and without any claim, upon him by her or in her behalf. In referring to the date of the wedding as the date of the contract, the phrase “to wit” is used, but- this instrument is not a piece of pleading and the phrase has here no materiality., The bill further sets out that the husband paid the $300.00, and that this instrument was thereupon delivered by the said Sarah Emeline to the said Zebedee, and that he accepted it, and retained possession thereof until his death. It would appear, then, that contemporaneously with the contract of marriage solemnized by the State, there was an agreement between the parties that marital rights and obligations should cease whenever the husband should pay the wife the $300.00 specified. To avoid harsh phraseology, the marriage seems tot have been experimental, so far as the parties thereto could make it so; a travesty of marriage and a mockery of marriage vows.

The instrument further recites that for the “same consideration” the said Sarah Emeline releases, assigns, and conveys to, the orators all right, title, interest or claim which she “may have as widow” in or toi the estate of her said husband. But according to the recitals of the instrument, this consideration was exhausted in the procurement of the release of the claims of the wife to support, and soi there was no consideration for the assignment to the orators of any claim which she “as widow” might thereafter have upon her husband’s estate. There was no consideration for the assignment moving from, the orators, or- from the husband or any one else for the benefit of the orators. The bill further sets out, in effect, that there was no rescission, or attempted rescission, of the contract in the life-time of Zebedee, and that after his death, on the 25th day of July, 1903, and not before, she offered to “return” the principal sum: of $300.00 to the administrator of said Zebedee. It appears from- the bill that this offer was in the presence of the probate court, and that the orators protested that the administrator should not accept the offer. It further appears from the bill that June 6, 1903, the said Sarah Emeline filed a widow’s waiver as full and complete as could be filed under the Vermont Statutes and amendments thereto, and demanded an allowance out of the estate. However, the widow’s waiver, contemplated hy the statute, is of some provision of some kind the benefit of which she is to get upon or after the husband’s death. Chaffee v. Chaffee, 70 Vt. 231, 40 Atl. 247; Acts of 1896, No'. 44. The bill further states that the sum of $300.00 paid to said Sarah' Emeline was a just, adequate and reasonable share for her out of the estate of her husband.

The bill prays that specific performance on the part of aaid Sarah Emeline Churchill may be decreed, that temporary restraining orders may be made, and that general relief may be granted. On demurrer the bill was dismissed and the orators appealed.

We think that the court of chancery was right in dismissing the bill. Separation agreements, not contemplated at the time of marriage, and not brought about by a frivolous view of the marriage obligation, may come about for such reasons, and may be of such a character, that courts of equity will recognize them, and will enforce the specific performance of pecuniary agreements relating thereto. But the State is, on grounds of public policy, interested in the permanency of a marriage relation which it has sanctioned, and courts of equity ought not to enforce the performance of contracts tainted with an understanding, contemporaneous with the marriage, looking to a possible or probable separation in the future, and', in the nature of things, tending to bring such a separation about. Squires v. Squires, 53 Vt. 208, contains in the opinion of the Court delivered by Judge Veazey, a valuable discussion of separation agreements, and points out those that courts may recognize, at least for some purposes. A lengthy and able review of the history and doctrine of agreements for separation is found in the recent case of Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088.

But there is hardly need in this case to' refer to the very numerous and very conflicting cases which relate either to separation agreements, or to some of the incidents thereof. The bill, as drawn in this case, seems to have to do with an option of separation, taken and given on the occasion of the marriage, — an option of such a character that, in any resulting state of things, a court of equity ought not to interpose.

The decree of the court of chancery dismissing the bill is affirmed and the cause is remanded.  