
    Hoagland v. Hoagland.
    
      Husband and wife — Gontracts in contemplation of separation valid, when — Release of dower and distributive share— Agreement for future support of parties and children— Power to release expectancy or chance of succession.
    
    1. Where husband and wife, in contemplation of separation, enter into mutual covenants for release of dower and distributive share, and as part consideration therefor the husband pays the wife the sum of $5,000, which she accepts, and separation occurs pursuant thereto, such contract, if made in accordance with the rules controlling actions of persons occupying confidential relations, is lawfully permitted under Section 8000, General Code.
    2. Sections 7909 and 8000, General Code, when construed together, permit a husband and wife, contemplating such separation, to enter into an engagement mutually releasing each other’s right to dower and distributive share in the other’s property; they are also authorized thereby to contract for the future support of either of them and their children during such separation.
    3. The principle announced in Needles, Exr., v. Needles, 7 Ohio St., 433, 70 Am. Dec., 85, that “the mere expectancy or chance of succession of an heir apparent to his ancestor’s estate” is not subject to release at common law, does not apply to a husband or wife’s release of their respective claims to dower and distributive share in the property of the other. (McGee v. Sigmund, 109 Ohio St., 375, 142 N. E., 676, overruled.)
    (No. 18829
    Decided June 16, 1925.)
    Error to the Court of Appeals of Trumbull county.
    This was an action to quiet title. On April 10, 1916, one M. V. Hoagland and his wife, Clara Hoagland, entered into a written separation agreement designated as a “Post Nuptials Contract.” This agreement reeited' that in contemplation of separation on that date the parties entered into mutual covenants with each other, whereby they agreed to live apart, each agreeing to mutually release the other from claims for care, support, or maintenance, and each releasing to the other “all claims of dower, year’s support, distributive share, or allowance of any and every kind whatsoever, that either may now have or at any time in the future may have in the property of the other party as husband or wife, or as widow or widower of the survivor of either of them.”
    
      [ 1.] Descent and Distribution, 18 C. J., Sec. 98 (1926 Anno.); Dower, 19 C. J., Sec. 154; [2.] Id; [3.] Id.
    
    
      They agreed mutually, when requested one by the other, to join in such conveyances as might be necessary to convey any real estate then owned or thereafter acquired by either, the agreement expressly reciting that in order to enable either to sell and convey such real estate, free of dower, .each thereby released any such claim either might have in the property of the other, then owned or thereafter acquired by the other. This agreement was signed, witnessed, and acknowledged before a notary public and recorded in the record of leases ánd agreements of Trumbull county. As part consideration for the agreement the husband paid the wife the sum of $5,000 immediately upon execution of the agreement, and husband and wife “lived separate and apart from that time on.” The husband died in December, 1916, seized of certain premises, leaving Clara Hoagland, his widow, and three children surviving, two of whom in Septenaher, 1922, conveyed their interests to the other child, J. C. Hoagland, who filed his petition against the widow, who claimed a dower interest in the premises.
    The cause was tried in the common pleas court, which made a finding of facts as herein stated, and as a conclusion of law held that the widow was not barred from asserting dower in the premises. Its judgment was affirmed by the Oourt of Appeals. Thereupon the case was certified to this court for review on petition in error filed by J. C. Hoagland.
    
      Mr. H. H. Hoppe and Messrs. Fillius <& Fillius, for plaintiff in error.
    
      Mr. I. G. Mathews and Messrs. Metoalfe & Cannon, for defendant in error.
    
      Mr. D. W. Jones, mnicus curiae.
    
   Jones, J.

In the case of DuBois v. Coen, Ex’r., 100 Ohio St., 17, 125 N. E., 121, this court held that the term “legal relations” comprised not only marital relations, but also property which the law gave to husband or wife upon death of a consort. The same case is also authority for the principle that a husband and wife, living together, cannot alter such legal relations by any post-nuptial agreement contracting away the dower rights and distributive share in the property of each other. The reasons assigned sustaining the principle so announced are found in that reported case. The question whether such husband and wife, with a view to separation, could enter into a postnuptial agreement contracting away their respective dower rights and distributive shares in the property of each other was distinctly reserved, as appears in the following sentence closing the opinion:

“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.”

We are now confronted with the question then mooted. Since many of the features affecting rights of contract were discussed in the DuBois case, repetition of that discussion need not be made here. Naturally the whole question turns upon the construction and legislative intent which should be given to Section 8000, General Code, which follows:

“A husband and wife cannot 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.”

However, we may again call attention to the fact that the act of March 19, 1887 (84 O. L. 132), was a legislative codification relating to the conjugal and property rights of husband and wife, including those of dower and distributive share. The common-law inhibitions surrounding the wife were abrogated by the act which gave her equal power with her husband to hold, dispose of, or contract with reference to property, both real and personal, subject to the rules controlling persons occupying confidential relations; and husband and wife under the provisions of Section 7999, General Code, now may “enter into any engagement or transaction with the other, or with any other person,” which either might do if unmarried. By that section a broad power to contract has been given to either consort, and if an inchoate right of dower or right to distributive share may be released undoubtedly Section 7999, General O'ode, itself would be sufficiently comprehensive to give the consort that right, except as limited by the sections following. This right was denied a son in Needles, Ex’r., v. Needles, 7 Ohio St., 432, 70 Am. Dec., 85. But that decision is not decisive of this case for reasons hereafter stated. The devolution of property by way of dower and distributive share is purely statutory, and subject to legislative control. In the DuBois case, supra, this court held that since the right and liabilities of husband and wife, including their right to dower and distributive share, were all included in the same act, these comprised the “legal relations” subject to contract between them. In construing the section under consideration, we held that the act did not give them the right of contract with relation thereto, while the conjugal relation subsisted.

Have they such right if the marital relation has been altered by agreement to separate and a separation actually occurs? Undoubtedly Section 8000, General Code, contemplated that those legal relations to which we have referred are subject to alteration, since the act stipulates that they cannot contract with reference thereto, “except that they may agree to an immediate separation.” In the construction of this section we are not bound by the strict interpretation given to those statutes which abrogate common-law rights and remedies, since the statute itself has changed the common-law status of the wife by giving her the rights of a feme sole and an unfettered power of contract in respect to her 'Own and her husband’s property.

We think that the crucial question of construction turna upon the meaning which should be given to the language used in Section 8000, General Code, wherein husband and wife are forbidden from altering their legal relations, “except that they may agree to an immediate separation,” etc. That section is composed of two component parts, it permits husband and wife (a) to alter their legal relations by method of agreement upon immediate separation, and (b) to make an agreement for the support of either and their children during separation.

Construing Sections 7999 and 8000, General Code, together, we think it quite apparent that by the former section husband and wife were given comprehensive powers of contract relating to “any engagement or transaction with the other;” that by the following section it was the legislative purpose to limit their contractual powers with respect to dower and distributive share, etc. (embodied in the act), to contingencies where they agreed “to an immediate separation;” that the language employed in Section 8000, General Code, denied husband and wife the privilege of altering their legal relations “except” or « case they might agree to an immediate separation. By the use of the language so employed there is an implication that such “legal relations” could be altered by a contract for an immediate separation; and, conversely, if no separation were contemplated, that then such legal relations could not be altered. That section also provides that if they do agree to an immediate separation they may contract for the support of either of them and their children during separation. Evidently this clause was embodied in the section for the reason, that otherwise, under Section 7997, General Code, the primary obligation of support was placed upon the husband, and measurably upon the wife in case of his inability.

We are constrained to this conclusion because of the fact that this court, before the passage of the husband and wife act, exercising its equity jurisdiction, upheld contracts between husband and wife for release of dower and distributive share where such contracts were made with a view to separation, and separation occurred. We do not think that the Legislature, when it adopted the act of 1887, granting the wife the feme sole power to contract, had any intention of curtailing at law a right which the wife theretofore had in equity. These contracts were upheld by this court in equity, when fair, reasonable, and just. The equitable application of that principle was carried into the husband and wife act when Section 7999, General Code, provided in terms that a husband and wife “may enter into any engagement or transaction with the other * * # subject * * * to the general rules which control the actions of persons occupying confidential relations with each other.”

As early as 1846 this court held in Bettle v. Wilson, 14 Ohio, 257, that articles of separation providing for the support and maintenance of the wife were not void as against public policy where separation took place. In Thomas v. Brown, 10 Ohio St., 247, the husband and wife entered into a postnuptial agreement in contemplation of separation. In consideration of the wife’s release of dower and the support of herself and children, the husband agreed to convey a portion of his farm to her. The wife performed her agreement, but the husband died without conveying the land. The court decreed a conveyance as against the heirs of the husband. In Miller’s Ex’r. v. Miller, 16 Ohio St., 527, an agreement of separation was entered into between the husband and wife, followed by a separation. The husband paid the wife $700 in consideration of the wife’s release of all her claims as distributee of his estate in case she survived him. After the husband’s death, the wife sued for her distributive share, and the court held that such postnuptial agreement, made in view of voluntary separation, where fully executed by one party, would be upheld and enforced in equity, if fair, reasonable, and just.

It is again urged that the “legal relations” subject to alteration by contract are those which are purely marital, and that the dower and distributive share obligations designated in the act were not comprised within that term; that under the last clause of ¡Section 8000, General Code, the statutory authorization permitted husband and wife to contract only for immediate separation, and for the support of either spouse and their children. Such construction, in view of the consideration of the whole act, is not reasonable, since without legislative authorization the husband and wife had power to make a valid contract for separation and support, under the pronouncement of this court in the case of Bettle v. Wilson, supra.

There are decisions in various jurisdictions of this country which uphold the right of husband and wife to enter into a contract of this character whether separation occurs or not. Among others are Crum v. Sawyer, 132 Ill., 443, 24 N. E., 956, and Carling v. Peebles, Adm’r., 215 Ill., 96, 74 N. E., 87. The Illinois decisions were based upon a general grant of power to husband and wife to contract, similar to that contained in Section 7999, General Code; but the Illinois statute does not seem to place a limitation upon such contract, as does Section 8000 of our Code, which qualifies that right by requiring an agreement for immediate separation. We do not deem it necessary to refer to various decided cases where separation agreements similar in character to the one under consideration have 'been upheld.

In Melrose v. Besser, 77 Ind. App., 3, 133 N. E., 27, the Chief Justice of the Indiana court, citing numerous cases in its support, announced the following general principle:

“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 view of the adjudicated oases in various jurisdictions, including our own, upholding the right of husband and wife to make contracts of this character, which were uniformly enforced in equity, we think that the Legislature, under the comprehensive provisions of the sections referred to, gave to each spouse a right at law to enter into these separation contracts. When this act was adopted in 1887 it was the evident purpose of the Legislature to enlarge, and not to limit, the contractual rights of husband and wife; and if this court should now so construe the husband and wife act as to deprive these consorts from entering into contracts involving each other’s rights to dower and distributive share, we would be lending our aid to a principle shackling contractual liberty theretofore enjoyed by them. One positive limitation in the act is the requirement found in Section 7999, General Code, subjecting their transactions to the rules controlling persons occupying confidential relations.

The syllabus of this court in the case of McGee v. Sigmund, 109 Ohio St., 375, 142 N. E., 676, does not support the conclusion arrived at here, nor is it ini accord with the principle announced in Miller’s Ex’r. v. Miller, supra. In the McGee v. Sigmund case there was a separation agreement similar to the one in the instant case. The husband and wife each released the right to dower and distributive share. The parties carried out the agreement, the husband as part consideration therefor assigning to his wife bank stock valued at $2,500, and releasing his title and claim to the household goods and furniture. The parties separated, and the terms of the agreement were fully complied with up to the death of the wife, who died intestate, leaving her. niece as the nearest blood relation. The niece sued the husband for specific performance of the contract whereby he had released, among other things, all claims for dower and distributive share in his wife’s property. This court sustained the lower court in dismissing the petition of the niece upon the authority of Needles, Ex’r., v. Needles, 7 Ohio St., 432, 70 Am. Dec., 85, the syllabus in the McGee case stating that a husband or wife was not “empowered to contract with the other with reference to a hope or expectancy of inheritance, which is neither vested nor contingent.” By placing the spouse of a deceased consort upon the same plane as an ordinary heir, and in holding that such spouse’s expectancy of inheritance was neither vested nor contingent, we think that the principle stated in the syllabus erroneously extended the rule announced in the Needles case, supra; that the character of the estate succeeded to by the wife can be clearly distinguished from that of an ordinary heir. The Needles case, supra, in the sixth paragraph of the syllabus held that:

“The mere expectancy or chance of succession of an heir apparent to his ancestor’s estate at his decease, is not the subject-matter of release or assignment at common law.”

There is an important difference between the character of an estate, which a consort will receive on the death of her spouse, and the naked possibility of an estate which a son or daughter may receive from an ancestor. The latter is a naked and remote possibility. A son has no right to his father’s estate, either vested or contingent, prior to the death of the ancestor. The latter owes no legal obligation to the former and may will his estate at pleasure. A son releasing all of his claims against bis father’s estate thereby enters into a contract where there is neither mutuality nor obligation upon the part of the ancestor, for without the contract of release the ancestor could distribute his property at pleasure as against any one but his own spouse. See the Needles case, supra, page 445. The interest of an heir is a naked possibility, a mere expectancy of inheritance. But a spouse has an interest in the property of the other, contingent upon survival, which cannot be divested by will. In addition, dower is an interest that has a present value which cannot be abrogated without consent of the owner. Therein lies the clear distinction between the character of the interest which a spouse may contract to release and that of an ordinary heir. Under the statutes of our state, the law gives to the surviving consort a definite portion of the intestate’s property, both real and personal. This right, whether to dower or distributive share, in case of survival, cannot be defeated by any will. Doyle v. Doyle, Jr., 50 Ohio St., 330, 34 N. E., 166.

This distinction is clearly recognized in the case of Smith v. Smith, 57 Ohio St., 27, at page 37, 48 N. E., 28, 30, where Minshail, J., citing the case of Miller’s Ex’r. v. Miller, supra, as authority in support of contracts of this character, said of that case that the interest of a spouse was “not a mere expectancy or possibility. The right of a wife to a distributive portion of her husband’s personal estate, in case she survives him, cannot be defeated by the will of her husband. * * * It is then such an interest of the wife in the personal property of her husband, as that he cannot by will deprive her of it without her consent. With respect to such an interest a contract by the wife to release it to her husband for a fair and reasonable consideration paid her, might, with reason, be sustained against her, as was done in the above case. But this, as already pointed out, is not so in regard to the right of inheritance, which depends entirely upon the will of the ancestor. ”

Unlike the case of an ordinary heir, there is in the execution of contracts of this- character between husband and wife both consideration and mutuality therefor. For this reason the rule denying efficacy to the release by an heir should not be applied, where these releases are entered into between husband and wife. In that respect the Needles case, supra, is distinguished from the case at 'bar. The principle broadly announced in the syllabus in. McGee v. Sigmund, supra, is mot adhered to by this court, and is therefore overruled.

Were we to give equitable consideration to the facts in controversy, the widow would not be entitled, under the authorities cited, to the judgment she obtained in the lower courts. She entered into this, agreement releasing her dower and received from her husband the sum of $5,000, which she retained. Manifestly she cannot retain both her dower and the consideration paid to her for her release. If we were to consider the case from its equity side, we would be compelled to hold that, in accepting the consideration money, the widow is barred from asserting dower in the premises. For the reasons stated, the judgments of the lower courts are reversed, and the cause remanded to the court of common pleas for further proceedings.

Judgment reversed.

Marshall, C. J., Matthias, Day, Allen and Kinkade, JJ., concur.

Bobinson, J.,

dissenting. The Legislature, by the enactment of Section 7999, 'General Code, empowered husband and wife to contract with each other with reference to any subject upon which they might contract if unmarried. It at the same time, and in the same act, enacted Section 8000, General Code, “A husband and wife cannot 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,” thereby prohibiting the alteration of their “legal relations” to each other in every respect except in respect to immediate separation and the support of either and their children during separation. There is no ambiguity in either section, unless it be' found, in the words “legal relations.” *

“Legal relations” manifestly here has reference to the relationship arising out of their marriage. It must, in the composite mind of the Legislature, have included the legal right to cohabit, for it' deemed it necessary to and did except from the prohibition the right to contract that that relationship should cease by the provision “they may agree to an immediate separation. ” • It must, however, have included more than the legal right to cohabit, else why the enactment of the prohibition a,t all? Certainly we cannot attribute to the Legislature an intention to do so purposeless a thing as to enact a law prohibiting the making of certain contracts, and in the same sentence except from the operation thereof the entire subject-matter of the prohibition. But the Legislature did not leave the discovery of the sense in which it used the words “legal relations” to the application of the presumption that it always acts rationally, for by a further exception, joined therewith by the conjunction “and,” it unmistakably declared that by its use of the words “legal relations” it included more than legal cohabitation, for it excepted from the prohibition the right, by contract with each other, to “make provisions for the support of either of them and their children during the separation.” If the words “legal relations,” as used by the Legislature in this section, comprehend the right, conferred by law, of wife or husband and child to support, as they unmistakably do, by what honest logic can it be deduced that the words “legal relations” do not comprehend any and all the other rights to which the marriage contract by law gives rise? And by what logic can it be deduced that the Legislature having prohibited the alteration of such rights by contract, and having excepted from such prohibition two of such rights by name and designation, intended to include as exceptions all other rights arising out of the marriage contract not specifically excepted?

This court in the construction of 'Constitution and statutes has often invoked the doctrine ex- pressio unius est exclusio alterius. If applicable anywhere why is it not applicable here? Concededly the Legislature is, and at all times has been, clothed with power to legislate upon the subject. It has legislated, and since then 38 years have intervened, and almost as many sessions of the Legislature have come and gone without the least modification thereof.

The construction of Sections 7999 and 8000 by the courts of the state has thus far been consistent, but now the majority of this court, perchance because it is not in accord with the wisdom of that legislation, has, in violation of its constitutional authority, invaded the legislative domain, and by judicial fiat has repealed the prohibition and amended Section 8000 to read that a husband and wife contemplating separation are permitted “to enter into an engagement mutually .releasing each other’s right to dower and distributive share in the other’s property,” and thereby has imposed upon the state, as statutory law, that which neither the Legislature nor the electorate ever enacted, and has supported that decision, if support it may be called, solely by cases decided before the prohibition of Section 8000 was enacted, and at a time, or times, when no such prohibition existed — decisions that have no more application to the construction of this statute than has the Sermon on the Mount — and this, too, in an equity case, where equity could have required the defendant in error to have cleansed her hands by a refund of the sum received under the prohibited contract, as a prerequisite to the maintenance of her defense.

With, the wisdom of the legislation as enacted hy the Legislature, or the wisdom of the legislation as adjudged by this court, the writer of this dissent is not concerned. Indeed, the measure of human happiness or cup of human ill will not be greatly augmented or diminished either by adherence to the authorized legislation by the Legislature or adherence to the unauthorized legislation by this court.

The legislation, as a declaration of a rule defining the rights of married persons, is not of transcendent importance. The airy way in which the defendant in error regards her moral obligation has no appeal to a court of equity. But because this decision can be accounted for upon no other theory than that it assumes the power in this court to annul or modify legislation for the sole reason that it does not approve the policy and wisdom of it, and thereby strikes constitutional government at its root; because of the very boldness of the assault; and because the source of the assault is that branch of the government upon which specially rests the responsibility of preserving the integrity of the Constitution, duty will not permit that it go unchallenged.  