
    Mary A. Tallinger, App’lt, v. Austin Mandeville et al., Ex’rs, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Husband and wife—Contract between, in relation to separate
    estate—When valid.
    The plaintiff was married to the defendants’ testator in September, 1881. In February thereafter said testator executed an instrument wherein he secured to her $10,000, payable at his death, provided she should live with, him as his wife until that time and faithfully perform all the duties, etc. In July, 1882, the parties executed an instrument whereby, in consideration of $5,000 paid by the defendants’ testator to the plaintiff, it was agreed, that the plaintiff should thereafter live apart from him, make no claim against him or his estste after his death, execute and deliver a release of dower, and in case of any violation, the plaintiff was to repay the said $5,000, and that the former instrument of February, 1882, shonld be can-celled. After the death of the defendants’ testator, the plaintiff made a claim for dower, which was admeasured to her, and she also commenced this action to recover the sum of $10,000, mentioned in the agreement of' February, 1882, alleging an oral agreement to pay that sum in consideration of her marriage to the defendants’ testator. The defendants put in a denial, and further set up the instrument of February, 1882, demanding judgment for $5,000, as therein specified. Held, that the agreement of July, 1882, being executed, is binding; that when the plaintiff surrendered the obligation of February, 1832, which she then held as part of her separate estate, and in lieu received $5,000. that became her separate estate; that she could not hold the money thus received and at the same time enforce the obligation she had surrendered in consideration thereof.
    2. Same—Illegal agreements not enforceable.
    It was objected that the agreement of July, 1882, was illegal and against public policy. Held, that the law will never interfere at the instance of' either party with what has been done in execution of an illegal agreement.
    3. Same—Prerequisite to plaintiff’s recovery.
    Before the plaintiff could recover upon the agreement of February,. 1882, she should have repudiated the subsequent agreement of July, 1882,. and tendered back the $5,009 received thereunder.
    
      Appeal  from judgment supreme court, general term, fifth department, affirming a judgment entered on non-suit, ordered at Monroe circuit.
    
      P. Chamberlain, Jr., for app’lt; W. A. Sutherland, for resp’ts.
    
      
       Affirming 15 N. Y. State Rep., 652.
    
   Earl, J.

—On the 26th day of September, 1881, the plaintiff was married to the defendants’ testator, Godfrey Tallinger, and they commenced to live together as husband and wife. On the 18th day of February thereafter, the testator executed the following instrument:

“Whereas I, Godfrey Tallinger, did on the 26th day of September, 1881, marry my present wife, Mary Tallinger, and did then in consideration of said marriage agree to secure to her the payment of ten thousand dollars upon my death, provided she should live with me as my wife until said time, and should in all things at all times perform faithfully the duties of a wife and take such care of me and my household as I should request, and as should be proper and reasonable. Now, therefore, I do in consideration of the premises, agree with said Mary, that ten thous- and dollars shall be paid to her at my death, provided she shall faithfully perform all of said conditions on her part and such performance in full shall be a condition precedent to any liability to her upon this agreement.”

Both parties at the same time executed under seal another instrument, which was pinned to the former, as follows:

“It is agreed between Godfrey Tallinger and Mary Tallinger that the annexed instrument shall upon its delivery be deposited with Satterlee and Yoemans, or such other person or persons as said parties may agree upon at any time, to be held by them until the death of said Godfrey Tallinger, as the said Godfrey desires that it should not be made a public matter, and that the observance of this agreement upon the part of said Mary Tallinger shall be a condition precedent to any liability upon said agreement.” The domestic life of Mr. and Mrs. Tallinger soon became unhappy and inharmonious; and an agreement was made for a separation, in pursuance of which on the 20th day of July, 1882, they executed under seal the following instrument:
“This agreement, made this 20th day of July, 1882, between Godfrey Tallinger, of Rochester, "N. Y., and Mary Tallinger of the same place: Witnesseth, That in consideration of $5,000 this day paid by said Godfrey to said Mary, and other valuable considerations, it is agreed that said Mary shall absent herself continuously from and not visit the house of said Godfrey, or communicate with him or molest him, or make any claim upon or against him in any manner or against his estate after his death, and will upon request of any person interested in the same, after his death, execute to and deliver to them release of dower or other claim or interest in the estate of said Godfrey, and the said Mary does hereby release all claim of dower or other interest in any property now owned by said Godfrey or which he may hereafter own, and if said Mary shall violate any of the conditions or provisions hereof, or shall fail to perform any of the same, she shall thereupon repay to said Godfrey, his assigns or personal representatives said $5,000 and the interest thereon from this date, as liquidated damagés, and she charges her separate estate therewith and a certain agreement heretofore executed by said Godfrey and said Mary, whereby he agreed to pay at his death, upon the performance of certain conditions therein expressed, the sum of $10,000, is hereby cancelled and abrogated.”

Thereafter they lived separate, and Mr. Tallinger died on the 5th day of December, 1884. The plaintiff claimed dower in the real estate left by her husband and it was ad-measured to her, and in October, 1886, she commenced this action to recover the $10,000, mentioned in the instrument executed February 18, 1882. In her complaint she alleged an oral agreement to pay the $10,000, in consideration of her marriage to the testator, and the subsequent execution of the written agreement and that the $10,000 became due and payable, and demanded judgment for that sum, with interest from the death of the testator. The defendants in their answer alleged, among other things, that the plaintiff did not, after the execution of the written instrument live with the testator as his wife, caring for his household and performing all the duties of a wife faithfully; but that on the contrary she grossly and wilfully failed and neglected to perform her duties in the care and management of his household and to sustain the dutiful relations of a wife, and they set up as a further defense the execution of the instrument of July 20, 1882, and demanded judgment for $5,000 as therein specified for liquidated damages. The plaintiff served a reply simply denying the allegations of the counterclaim.

• Upon the trial the plaintiff gave some evidence tending to show misconduct on the part of her husband, and that she had just cause for separation from him. The defendants then proved the instrument dated July 20, 1882, and gave no further evidence. Upon defendants’ motion the court then non-suited the plaintiff. The judgment entered upon the ■ non-suit was upon appeal to the general term affirmed;

On the 20th day of July, 1882, the plaintiff held the obligation of the testator to pay her $10,000 at his death upon the conditions mentioned. That obligation constituted her separate estate, and under the laws of this state she had the same right to deal with it as if she were a femme sole. She could sell, release, or discharge it at her pleasure. It was payable upon certain conditions which might not be performed by her; and the estate of her husband might not at his death be sufficient to meet it. Hence clearly the instrument, payable at an uncertain time in the future upon the contingencies mentioned, was not of the value of $10,000. It is claimed, however, on the part of the plaintiff that as she was the wife of the testator her agreement made with him on the 20th of July, 1882, did not bind her. It is undoubtedly true that so far as that agreement remained executory it could not have been enforced by Mr. Tallinger, or his executors. But it was executed. She received in cash $5,000 and was released from the conditions contained in the prior instrument binding her to live with him and faithfully to perform the duties of wife and to take care of him and his household during his life. For the surrender therefore of the prior obligation she received ample consideration.

There is no allegation in the complaint or reply and there was no proof upon the trial that the consideration of $5,000 paid to her in hand was not an adeqate consideration for the surrender of the prior conditional obligation of her husband. There has never been a time in the history of the laV, and certainly not since 1848, when such an agreement between husband and wife relating to her separate estate, and fully executed, would have been absolutely void. She surrendered an obligation which she then held as a part of her separate estate, and in lieu thereof received $5,000 in money, and that became her separate estate; and it never could be held in a forum administering both law and equity that she could hold_ the money thus received and enforce the obligation which she had surrendered in consideration thereof. Agreements between husband and wife founded upon valuable considerations have frequently been enforced in equity. She may even sell her separate estate to her husband for a valuable consideration, and the sale will be upheld in equity. White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423; Hunt v. Johnson, 44 id., 27; Boyd v. De L’Montagnie, 73 id., 498.

Here by her own act she surrendered, released and discharged her husband’s obligation. Thereafter she did not in any sense hold or possess it, and she could regain it, and be re-instated in her rights under it, only by a suit instituted in equity for that purpose, in which case relief could be granted to her according to the equities of the case as they appeared upon the proofs. The agreement of the 20th of July, 1882, cannot therefore be assailed in this action, be-! cause the parties thereto were husband and wife.

The further objection is made on behalf of the plaintiff that the agreement of July twentieth was illegal and against public policy as it provided for the separation of husband and wife. If it were ah executory agreement and either party was seeking to enforce it, the objection would be a good one. But here the agreement had been executed. She took the $5,000 and gave up her obligation. The law will never inferiere at the instance of either party with what has been done in execution of an illegal agreement. It simply refuses to enforce such agreements, or such as are against public policy; but it never intervenes to relieve either party against them so far as they have been executed. It refuses to enforce such agreements, not from any regard or concern for the parties thereto, but to promote the public policy and the general welfare, and so far as they have been executed, they cease to interest the public, and public policy is supposed 4o be best subserved by letting them alone and leaving the parties to them where they have placed themselves. The obligation upon which she sues has been paid and discharged, and it does not avail her to say that such payment and discharge were in pursuance of an agreement which was in fact illegal.

It has, nevertheless, been paid and discharged, and the law will not at her instance, either directly or indirectly, set aside or undo what has been done on account of any illegality in the agreement.

It is also claimed by the plaintiff that from the relation existing between Mr. and Mrs. Tallinger, it must be presumed that she was overreached, imposed upon or defrauded by her husband. But all the facts appear here, and there is nothing from which such a. presumption can arise. At the time of the execution of the obligation of February 19, 1881, Mr. Tallinger was about .seventy-two years old, and it was impossible on the 20th of July thereafter, to estimate precisely the value of that obligation. It was conditioned upon performance of several things by the plaintiff. Its value depended, to a large extent, upon the length of the testator’s life, and of the adequacy of his property at death. Under such circumstances it is not apparent that $5,000 in hand paid, was not a fair equivalent for the release of the obligation. There is no allegation in the complaint that she was overreached or defrauded, or that the amount paid her was not adequate. But even if the plaintiff had been overreached by being induced to surrender the prior obligation, and to take in lieu thereof $5,000 in money, she was in no condition to succeed in this action. The defendants did not admit the liability of the testator upon the obligation of February 18th, but disputed it, and alleged that she had violated the conditions mentioned therein, and that she was not therefore entitled to recover anything. Under such circumstances, before she could recover upon the original instrument, she should have repudiated the subsequent agreement of July 20th, and should have tendered back the $5,000. It is not a case where upon the undisputed facts, the plaintiff would be entitled to recover something, either under the original obligation or the substitute agreement. The executors denied their obligation to pay anything, and in such a case, it was the duty of the plaintiff to restore the $5,000 that the litigation could thereafter be carried on solely upon the liability of the defendants under the original agreement. Gould v. Cayuga Nat. Bank, 86 N. Y., 75.

The judgment should, therefore, be affirmed, with costs.

All concur.  