Gurley v. Gorman , 137 Miss. 210 ( 1924 )

Holden, J.,

delivered the opinion of the court.

This is an appeal from a decree sustaining the right of the widow, Mrs. Pearl Gorman, 'to renounce the will of her deceased husband, John Gorman, and to take her legal share of his estate; the other heirs at' law contesting the right to renounce the will, on the ground that the deceased while living had fully settled with his wife for her share in his estate.

James Gorman died, leaving an estate valued at about five thousand dollars; and he left surviving him two children by a former marriage, and the appellee, his wife. He left a will, giving the bulk of his estate to his son, and bequeathing' only five dollars to his wife. Mrs. Gorman renounced the will, and asked that she be allowed to take her legal share of one-third of the estate. The executor and the son answered, and denied her right to take her legal share of the estate because she had signed a release to all of her interest in the estate for the consideration óf three hundred and thirty dollars before the death of her husband.

This settlement, as evidenced by the written release, appears from the record to have come about in this way: James _ Gorman and his wife had not been living in harmony, and they went together to the office of a lawyer and there discussed the differences between themselves and a settlement thereof.

At this conference, which was attended only by Mr. Gorman, his wife, and the lawyer, it was agreed that Mr. Gorman should pay his wife three hundred and thirty dollars in settlement of any claim that she might have against his estate, and that Mrs. Gorman would file a bill for divorce, and Mr. Gorman, agreed that he would not contest the divorce suit. After the money was paid over to her and the written release signed bv her, the lawyer proceeded to prepare and file the bill for divorce, and the parties then left the office. Afterwards it seems that the bill was dismissed and a new suit for alimony instituted by the wife, whereupon Mr. Gorman answered with a cross-bill seeking a divorce from her and pleading his release for the sum of three hundred and thirty dollars. No divorce was granted.

We think the subsequent events regarding the separation and divorce proceedings between Mr. and Mrs. Gorman are immaterial for the purpose of deciding the question presented to us on this appeal, and therefore we shall not state- these proceedings or the outcome thereof.

After hearing all the testimony, the chancellor decided that the release was invalid, for the reason that the settlement and release was the result of a collusive agreement between the .husband and wife- for the purpose of promoting or facilitating the procurement of a divorce, which collusion was contrary to public policy and vitiated the settlement; and the renunciation of the will was allowed by the court and the wife permitted to take her share in the estate of the deceased husband.

The appellant contends the settlement made between the hugband and wife as evidenced by the written release was valid because the proof was not sufficient to show that the settlement was the result of collusion between the husband and wife to secure a divorce; that the written release was not subject to contradiction by oral proof; and that the release was sufficiently broad in its terms to cover the present or any future interest the wife had or might have in the estate of the husband.

The appellee urges that the decree of the chancellor is correct on two grounds, viz.: First, the written release is not sufficiently definite to cover any future inheritable interest the wife might have in the estate of the husband; and, second, that, even though the release is sufficiently broad to cover the future interest of the wife in the estate of the husband, still the settlement evidenced by the written release is void because it was made upon and grew out of a collusive agreement between the husband and wife to procure a divorce.

We think the position of the appellant is untenable, and that of the appellee is sound. Because, if we concede the terms of the written release were broad enough to cover all future interest the wife might have in the estate of the deceased husband, still it is our opinion the release and settlement with the wife was invalid because it grew out of and was based upon the agreement or understanding between tbe husband and wife to secure a divorce.

The collusive understanding that the bill would be filed by the wife and the husband agreeing not to oppose it occurred at the time the release was given, and was part of the settlement transaction resulting: in the payment of the money and the execution of the release by the wife. The- illegal collusion between the parties tainted the contract of settlement, and this infection nullified the release, and oral testimony showing this legal infirmity, due.lo collusion, and contrary to the public policy of our state, was admissible to invalidate the written release, similarly as' in a case where fraud is shown to vitiate a contract.-

We have considered the evidence in the record showing that the settlement and release was induced by, and was a part of, the collusive agreement to secure the divorce, and we think it was sufficient to support the finding of fact by the chancellor that the settlement was the direct result of the collusion between the parties.

The rule seems to be well established in all other jurisdictions and we approve and adopt it, that collusion between husband and wife to obtain a divorce is illegal and contrary to public policy, and that any contract or agreement made by virtue of our in connection with such collusive agreement is unenforceable in the courts, and cannot be set up as a binding contract.

Therefore we hold that the decree of the chancellor in allowing the appellee to renounce the will and take her legal share in the estate was correct, because the settlement between the' husband and wife was void for the reasons heretofore given. 9 R. C. L. pt. 13, p. 254; Palmer v. Palmer, 26 Utah, 31, 72 P. 3, 61 L. R. A. 641, 99 Am. St. Rep. 820.

A.firmed.