Stebbins v. Morris , 1896 Mont. LEXIS 241 ( 1896 )

Hurt, J.

The appellant’s side of this case has not been presented to the court, except by a short brief filed by E. P. Cadwell, who has been disbarred from practicing law in this state since this appeal was taken. We decline to consider this brief. (Engesser v. Railroad Co., ante, p. 31.)

The respondent has presented his views by able argument and brief, contending that the agreement between the husband and wife, set forth in the statement of the case, is void, as against public policy, and because it was made directly between the husband and wife prior to the married woman’s act of 1887. (Compiled St. 1887.) He cites many decisions to sustain his contention, but their reasoning is not' altogether satisfactory to us upon the proposition that the whole contract is- void.

It would seem to be correct that the bargaining for the separation is nugatory, under the weight of authority, upon the ground that marriage is a public institution as well as a private one, and those who have entered into the marital relations cannot, by mere consent and agreement, set aside that contract, or create a separation. But, from our original examination into the question, we are not satisfied that, where a husband and wife enter into articles of separation, apparently in good faith, in which the husband agrees to give the wife certain moneys and personal property by way of provision for her maintenance, and immediately thereaftei they do separate, and he procures a divorce, the wife may not institute a suit for equitable relief, to have the husband carry out his contract to maintain her as provided for. The following authorities hold she may: Bish. Mar. Div. & Sep. §§ 1268-1312; Bettle v. Wilson, 14 Ohio, 257; Calkins v. Long, 22 Barb. 97. And it is held that such an agreement is valid, directly between husband and wife, without the intervention of a trustee; for equity will regard the husband as a trustee for the specific purpose of the agreement for maintenance. (Com. v. Richards, 131 Pa. St. 209, 18 Atl. 1007; Hutton v. Hutton's Adm'r, 3 Pa. St. 100; Schouler, Dom. Rel. (5th Ed.) § 218; Dutton v. Dutton, 30 Ind. 452.)

The question of legal and illegal conditions in agreements of separation is of more than usual importance, as reference to the books amply proves, and we hesitate to decide it for the first time in this state without the benefit of the aid of counsel for both sides.

.Its discussion has already occasioned “judicial confusion,” according to Schouler, and, in our opinion, that confusion should not be increased nor decreased without very careful consideration. But, • the appellant not being represented in this court by counsel or by brief which can be considered, the judgment of the district court will be'affirmed.

If the appellant desires, in good faith, to present her case, she may, upon good cause to be shown to the court, move to reinstate her appeal within 60 days from the date hereof.

Affirmed.