& J. 249. In most cases, however, the general tendency towards upholding the agreement was followed. Webster v. Webster, 1 Smale & G. 489; Randle v. Gould, 8 El. & Bl. 457; Williams v. Baily, L. R. 2 Eq. 731; Rowley v. Rowley, L. R. 1 H. L. Sc. 63; Gibbs v. Harding, L. R. 8 Eq. 492. Lord Chancellor Westbury, in 1862, enjoined a suit for restitution which had been begun in the divorce court, contrary to the stipulation of a separation deed. The divorce court had succeeded to the jurisdiction of the ecclesiastical court in 1857 (20 & 21 Vict. ch. 85), and administered the law in a similar manner. Id. § 22. The chancellor justified the decision by reasoning that separation deeds were valid, although the ecclesiastical doctrine was different, because by a statute of Henry VIII. the ecclesiastical law was subordinated to the common law; that the decision of the house of lords in Wilson v. Wilson, 1 H. L. Cas. 538, overruling the earlier cases, must be treated like a statute, and that while a voluntary separation was an offense against the ecclesiastical law, it was not one against the common law, and therefore the rights in controversy were only private, and public policy was not involved. Hunt v. Hunt, 4 De Gex, F. & J. 221. The case was appealed to the house of lords, but no decision was rendered, as Mrs. Hunt died pendente lite. See Brown v. Brown, L. R. 7 Eq. 185, 191. The reasoning of this case does not seem to have been followed, but its conclusions have been adopted. In 1879 Sir William Jessell, master of the rolls, treated the question as settled by the later cases. "For a great number of years both ecclesiastical judges and lay judges thought it was something very horrible, and against public policy, that husband and wife should agree to live separate; and it was supposed that a civilized country could no longer exist if such agreements were enforced by courts of law, whether ecclesiastical or not. But a change came over judicial opinion as to public policy, and other considerations arose, and people began to think that, after all, it might be better and more beneficial for married people to avoid in many cases the expense and the scandal of suits of divorce by settling their differences quietly by the aid of friends out of court, although the consequence might be that they would live separately; and that was the view carried out by the courts when it became once decided that separation deeds were not per se against public policy." Besant v. Wood, 12 Ch. Div. 605. In that case the agreement provided that each party should have the custody of one child. Afterwards the father sued for and obtained custody of the one with the mother, the court treating the agreement touching that subject as void. Thereupon the wife sought to renew cohabitation, "but the court deemed that the policy of the law made her agreement for separation controlling over her, and the consideration for it void as to him. This exquisitely refined principle of high honor does not pertain to the laws of so young a people as

In

we are." 1 Bish. Mar. & Div. § 634a, note. the same year it was again decided that an agreement not to demand restitution of conjugal rights is a valid contract, and that, since by the judicature act of 1873 all defenses are made available in the divorce courts that would be available in equity, the covenant is a bar to proceedings for restitution. Marshall v. Marshall, 5 Prob. Div. 19. Finally, in 1888, it was decided that a trustee is no longer necessary, and that the parties may make the contract directly with each other. McGregor v. McGregor, L. R. 20 Q. B. 529. This decision is expressly put upon common-law grounds, and in no way depends upon statutes enlarging the powers of married women.

It appears that the present position of the English courts has been reached by means of a gradual abandonment of common-law doctrines. It originated in the undoubted proposition that an agreement by the husband to support his wife is not in violation of marital obligation, but a part performance of the duties thereby imposed. From this has come the whole elaborate system of annuities and other property arrangements, each finding its real, if not ostensible, consideration in an agreement to live separate. For a time some other consideration was always shown, as, for example, the promise of a third person to furnish support to the wife. Later this concession to the old law was abandoned, and while courts acknowledged the inconsistency of their position, they enforced property arrangements that depended solely upon a principal agreement which was declared to be invalid. Nor did fallacious reasoning stop here. The argument next advanced was, that while it was true courts in words denied the validity of these agreements, by judgments enforcing provisions dependent upon them, the judges really decided that separation agreements were good contracts. It was not without some vigorous protest that this line of argument was accepted as sound, but it finally prevailed. In one phase after another it was adopted, until now it seems to be held that as to everything but the right to remarry, the parties may divorce themselves. This wide departure from the common law has been induced by conditions which do not exist here. The arrangement of property matters through trustees, which forms so large a part of English conveyancing that half of the property in England is vested in nominal owners (2 Kent, Comm. 182), is practically unknown in this state. It is to the conveyancers, and their eagerness in seizing upon each new opportunity for arranging property matters, that the present results are largely due. Running through many of the opinions is found the idea that these conveyances are now so common that the titles to large amounts of property depend upon them, and therefore they cannot safely be disturbed. Another fruitful source of such agreements was that there was practically no divorce from the bonds of matrimony in England. These causes do not exist here. The decisions which

were in part induced by such conditions, and in part by the notions of the times as to "social policy” (Wennhak v. Morgan, 20 Q. B. Div. 635), are not authority here when in conflict with the common law. The doctrine adhered to by Lord Kenyon, that if changes in the law are needed, they must be made by the legislature, still prevails In this state. The modern English rule has not been generally adopted in this country. Few, if any, American courts have ever gone so far as to enforce an agreement to live in separation, or have even sustained covenants incident to such an agreement, except upon facts assumed to be sufficient to avoid a holding that the promise to live apart is valid. In a few states it is declared that these agreements are wholly void. Collins v. Collins, 62 N. Car. 153; Simpson v. Simpson, 4 Dana, 140, 142. The general doctrine of these cases does not seem to differ materially from that of most of the American authorities, but the application of the rule to contracts in part dependent upon an illegal covenant is more logical and satisfactory. Some of the late decisions in New York approach more nearly to the modern English theory than those in other states. The great number of reported cases in which these agreements are involved in one way or another, shows that they have come to be in common use there. As in England, the law supporting them has developed from small beginnings. In 1811, in the case of Baker v. Barney, 8 Johns. 72, it was decided that a husband who had provided suitably for a separated wife, was not liable for goods thereafter furnished to her, but that in the absence of such provision he was liable for necessaries, in spite of her agreement to the contrary. There was no discussion of the validity of agreements to live separate, and the case is disposed of in a brief per curiam opinion. Two years later it was relied upon as an authority for the proposition that upon the execution of a separation agreement the marriage union "essentially ceased," and therefore the husband and wife were competent witnesses for or against each other. Fenner v. Lewis, 10 Johns. 38. The weight of this case is much lessened by the later opinion of the then chief justice. "The general principle is established that the law does not authorize or sanction a voluntary agreement for a separation between husband and wife. * * * A private separation is an illegal contract, a renunciation of stipulated duties from which the parties cannot release themselves by any private act of their * Nothing can be clearer or more sound than this conjugal doctrine." 2 Kent, Comm. 176, note “b." It was next held that a bond for separate maintenance, which was assumed to be based upon a contract to continue to live apart, was valid and enforceable so long as the separation continued. Baker v. Barney, 8 Johns. 72, was relied upon, and no distinction was noted between agreements which do and those which do not depend upon a covenant to live apart. Shelthar v. Gregory (1829), 2 Wend. 422.

own.

Relying upon these cases, Chancellor Walworth, although joining in Lord Eldon's expressions of regret at the state of the law, held that an agreement for an immediate separation was valid if made through a trustee. Carson v. Murray (1832), 3 Paige, 483. The opinion also stated that a return to cohabitation would restore the husband to all his marital rights. The logic by which it is held that the mere agreement to live apart is invalid, and that the covenant as to maintenance can be sustained only through a trustee, leads inevitably to the conclusion that the covenant does not in any way affect marital rights. When it is also held that a return to cohabitation restores such rights, and puts an end to the contract with the trustee, it becomes evident that the true reason which led the court to sustain the agreement in the first instance was not given. If the covenant did not affect marital rights, its rescission could not restore them. If the rescission of the covenant was a necessary accompaniment of the restoration of marital rights, its original execution must have had to do with taking them away. This decision fairly illustrates the course taken in other cases in the court of chancery. Rogers v. Rogers, 4 Paige, 516; Heyer v. Burger, Hoff. Ch. 1; Champlin v. Champlin, Id. 55; Anderson v. Anderson, 1 Edw. Ch. 380; People v. Mercein, 8 Paige, 47. These cases were not always approved of. In Mercein v. People, 25 Wend. 64, 77, Justice Bronson said: "It is well worthy of consideration whether all agreements based on the voluntary separation of husband and wife are not contrary to law, and absolutely void." Chief Justice Nelson, in delivering the opinion of the court denying to such an agreement the effect of placing the wife on the footing of a feme sole as to suits at law, said that in courts of law the agreement was "condemned as waste paper by the soundest principles of policy, morality and law." Beach v. Beach, 2 Hill, 260. In many of the later cases agreements for support and as to property have been upheld, apparently without much regard as to whether they in fact depended upon a covenant to continue to live separate (Carpenter v. Osborn, 102 N. Y. 552, 7 N. E. Rep. 823; Pettit v. Pettit, 107 N. Y. 677, 14 N. E. Rep. 500; Galusha v. Galusha, 116 N. Y. 635, 22 N. E. Rep. 1114, 6 L. R. A. 487; Clark v. Fosdick, 118 N. Y. 7, 22 N. E. Rep. 1111, 6 L. R. A. 132), until the court declared in terms that "it is settled in this state that a contract between a husband and wife who have separated, to thereafter live apart, is not void on the ground of public policy." Duryea v. Bliven, 122 N. Y. 567, 25 N. E. Rep. 908. This proposition is perhaps modified or explained by the very recent opinion in which the court said that it must be borne in mind that a contract between husband and wife is void at law, and upheld solely in equity, and then not in every case, but only when the provision for the maintenance of the wife or children is suitable and equitable." Hungerford v. Hungerford, 161 N. Y. 550, 553, 56 N E. Rep. 117, 118. In some other

late cases agreements of this sort are disproved of. Poillon v. Poillon, 49 App. Div. 341, 63 N. Y. Supp. 301; Whitney v. Whitney, 4 App. Div. 597, 36 N. Y. Supp. 891, 39 N. Y. Supp. 1136; Friedman v. Bierman, 43 Hun, 387.

In Massachusetts, actions to enforce the husband's agreement to pay money to or for a sepa rated wife have been sustained. Page v. Trufant, 2 Mass. 159; Holbrook v. Comstock, 16 Gray, 109; Fox v. Davis, 113 Mass. 255. The question of the validity of such an agreement when inseparable from a covenant to continue to live apart arose in Albee v. Wyman, 10 Gray, 222. The court considered the English rule to be open to grave objections, and disposed of the case upon other grounds. In a recent case the agreement was sustained because the covenant to pay money for support was separable from others which were objectionable. Grime v. Borden, 166 Mass. 198, 44 N. E. Rep. 216.

In the United States courts agreements for a separate maintenance are upheld. Whether they would be if they depended upon an agreement to continue to live apart is a question the court was not called upon to consider, and it declined to discuss the subject in any aspect the case did not present. Walker v. Walker. 9 Wall. 743, 19 L. Ed. 814.

The question was early before the Connecticut court, and gave rise to much discussion. It was finally decided, by a vote of five to four, that a contract for separate maintenance was valid if made for what the court termed "proper cause"; and that, while "there may be cases of separation by agreement, attended with such circumstances and resting on such foul principles that good policy will not support them, when a case is claimed to be of that description it is incumbent on those who claim it so to show it." Nichols v. Palmer, 5 Day, 47, 52, 53. A discretionary power of this kind is broad, and somewhat novel.

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The prac

tical result of exercising it would be what is set forth in one of the dissenting opinions: "It is true, it has been said, that such separations should be admitted only in cases of the most urgent necessity, and for the strongest reasons; but no line of demarcation can be drawn. This decision proclaims to all who are married that they have the right to separate by mutual consent, as to whim, fancy, or passion may dictate." Id. 60. The true rule is stated in the dissenting opinion of Judge Ingersoll: "The marriage contract cannot, ad libitum, be dissolved by the parties. Nay, I presume in every case application must be made to a forum appointed by law for the purpose, to effect a dissolution. It follows, then, of course, that every agreement the consideration of which is the dissolution, or the intended dissolution, of the marriage contract, is void, and cannot be enforced in a court of justice. What, then, is a dissolution of it? I should suppose an agreement to live separately, and to perform none of the duties to each other, which they

solemnly promised to perform when the marriage took place, is a dissolution of the contract, so far as the parties can dissolve it. If this be а just position, every agreement to carry into effect such separation must be against the law. The agreement in question, being made to carry into effect such separation, by fair logical deduction, is against law and void." Id. 61. In a recent case the court of that state said of these contracts: The principle upon which they are sustained is, not that the separation should be enforced, nor that it is lawful for the parties to contract to separate, but that when they are living apart for causes rendering such separation reasonably necessary the agreement of the husband to perform his duty to furnish support for his wife should be carried out." Boland v. O'Neil, 72 Conn. 217, 44 Atl. Rep. 15. "After a marriage is entered into, the relation becomes a status, and is no longer one resting merely on contract. It is the relation fixed by law in which the married parties stand to each other, toward all other persons, and to the state. And it is a relation from which the persons cannot separate themselves by their own agreement, or by their own misconduct. This status can only be dissolved between living parties by the assent of the state, which is ordinarily indicated by the judgment of a competent court. When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose, but to make sure that the attempt will not prevail without sufficient and lawful cause shown by the real facts of the case, nor unless those conditions are found to exist at the time the decree is made upon which the state permits a divorce to be granted. The state has an interest in the maintenance of the marriage ties, which neither the collusion nor the negligence of the parties can impair." Andrews, C. J., Allen v. Allen (Conn.), 46 Atl. Rep. 242, 49 L. R. A. 142. According to these decisions, the present law of that state is more nearly expressed in the dissenting opinions in Nichols v. Palmer, 5 Day, 47, than in the prevailing ones.

That a contract simply for separate maintenance is valid may be said to be the general American rule. Randall v. Randall, 37 Mich. 563; Henderson v. Henderson (Oreg.), 60 Pac. Rep. 597, 48 L. R. A. 766; Emery v. Neighbour, 7 N. J. Law, 142; Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 24 Atl. Rep. 926; Phillips v. Meyers, 82 Ill. 67; Luttrell v. Boggs, 168 Ill. 361, 48 N. E. Rep. 171; Dutton v. Dutton, 30 Ind. 452; Robertson v. Robertson, 25 Iowa, 350; Carey v. Mackey, 82 Me. 516, 20 Atl. Rep. 84, 9 L. R. A. 113; Roll v. Roll, 51 Minn. 353, 53 N. W. Rep. 716; Helms v. Franciscus, 2 Bland, 544; Squires v. Squires, 53 Vt. 208; Gaines' Admx. v. Poor, 3 Metc. (Ky.) 503; Chapman v. Gray, 8 Ga. 341; McLaren v. Bradford, 52 Ga. 648; Garver v. Miller, 16 Ohio St. 527; Hutton v. Hutton's Admr., 3 Pa. 100; Buckner v. Ruth, 13 Rich. Law, 157; Goodrich v. Bryant, 5 Sneed, 325; Bowers v. Hutchin-on, 67

Ark. 15, 53 S. W. Rep. 399. In most of the cases where the question has been discussed the decisions have been put upon grounds other than that of upholding an agreement to live separate. In a few cases courts have been misled by the fact that an agreement to maintain is valid into supposing that one to live separate is equally so. Even these courts agree that, if there be a covenant for future separation, the whole deed is void. Yet this has no more tendency to promote a method of living not approved by law than an agreement to continue a present separation. The distinction, so far as one exists, originated from the rule that a mere agreement to maintain a separated wife was all that was at first recognized. This was put upon the ground that the husband's agreement was one to do what was a part of his duty. It was not the fact that the agreement depended upon an existing separation, but that it neither depended upon nor induced separation of any kind, either present or prospective, that made it a valid contract. When there was an existing separation, conveyancers were skillful enough to so draw the agreement that it appeared free from objectionable features, and so it would be upheld; but, when there was only a contemplation of separation, this was not so easily accomplished. The real motive and consideration then appeared in the contract, and for this cause it would be condemned by the court. Hence it came to be thought that, if the parties had actually separated, they might make a legal contract to continue to live apart. "Out of these propositions, namely, that married parties cannot validly contract to live in separation, yet the husband can obligate himself to render her a maintenance wherever she resides, comes the entire doctrine of separation under articles. When we look at the cases we find that they are sometimes discordant, and sometimes the particular decision proceeded on a misapprehension of true legal distinction; but, on the whole, the law as adjudicated is plainly so in our country, and it was so in England until of late, however it may be there now." 1 Bish. Mar. & Div. § 633. This doctrine is the only one which can be sustained if it be conceded that the marital status is one in which the state has an interest, and over which it may exercise a control. No intermediate rule ever has been or can be justified by any process of reasoning. If it be true that the rights involved are only private, why stop at the right of remarriage, or object to decrees of divorce by agreement? If it is good law that by their own act husband and wife may cease to sustain that relation, and may thus become as strangers, what is the principle that forbids one of them to remarry? No answer to these questions has been vouchsafed. The courts which have announced the extreme decisions have thus far refrained from considering the end to which their logic leads. In avoidance of these questions and similar ones asked long ago by Lord Kenyon, it is said that public sentiment has changed, social

policy is different, and courts must fashion the law to the demand of the times. However satisfactory this line of argument may be in England, it cannot be followed here. "To declare what the law is or has been is a judicial power; to declare what the law shall be is legislative. One of the fundamental principles of all our government is that the legislative power shall be separate from the judicial." Dash v. Van Kleeck, 7 Johns. 477, 498. The authorities in this state, so far as they have touched upon the question, follow the common law. In Pidgin v. Cram, 8 N. H. 350, the husband and wife had separated, and the wife was living with her father, who had covenanted with the husband to support her. It was decided that this agreement did not free the husband from his obligation to support his wife. So long as its covenants were performed, he would not be liable for goods furnished to her, because he was in this way performing his duty. If, however, she should be driven from her father's house by the inmates thereof, the husband would be liable to one who thereafter supplied her with necessaries. Unless she leaves his house against his will, he is bound to support her, and she takes his credit with her. Town of Rummey v. Keyes, 7 N. H. 571; Allen v. Aldrich, 29 N. H. 63. Sayles v. Sayles, 21 N. H. 312, was a suit upon a note given in consideration of a promise not to contest a libel for divorce. Justice Wood said: "No such agreement, even if executed, can form a valid consideration for either a verbal or written promise. The great and principal object of the agreement made between the parties was to bring about a dissolution of the marriage contract, and to put an end to the various duties and relations resulting from it. Any contract baving any such purpose, object, and tendency cannot be, in law, sustained, but must be regarded as being against sound public policy, and consequently illegal and void. The marriage relation is one to be encouraged and maintained when formed. Such is the wellsettled policy of the law; and its dissolution or determination is not to be left to depend upon the caprice of the parties. If determined, it must be done in accordance with some positive enactment of law, and in due course of judicial proceedings. The good order and well-being of society require this." The then recent cases upholding separation agreements were reviewed, but no opinion of their soundness was expressed beyond the suggestive statement that "in this state, at least, a separation a vinculo can only be effected through a decree of the courts of law." From this it may well be inferred that the court did not consider those cases as in harmony with the law here. Similar views of the nature of the status have been expressed in other cases. Clark v. Clark, 10 N. H. 380; Cross v. Cross, 58 N. H. 373; Cross v. Grant, 62 N. H. 675. So far as the English ideas are outgrowths of the early form of divorce a mensa et thoro, they are not applicable here. Limited divorces were never granted

in this state. Parsons v. Parsons, 9 N. H. 309, 317. As early as 1791 absolute divorces were here granted for the causes for which limited divorces were granted under the English practice. Act Feb. 17, 1791; Laws, 1805, p. 280. In no reported case in this state bas an agreement to live separate been passed upon favorably. What has been said upon the subject has uniformly been opposed to the validity of such a contract, The theory that marriage is only a civil contract is also disapproved of. "It is an institution of society, having its foundation in civil contract." Cross v. Grant, 62 N. H. 675, 684. The whole doctrine is summed up by Chief Justice Doe in a single sentence: "The marriage contract may be broken by either party, with or without the consent of the other; but it cannot be rescinded or modified by them." Ferren v. Moore, 59 N. H. 106. It is not necessary to now consider how far the statutory power of husband and wife to contract as to property matters extends, or whether their agreement to release prospective rights in each other's estates could, in any event, be enforced. Compare Shute v. Sargent, 67 N. H. 305, 36 Atl. Rep. 282, with Reed v. Blaisdell, 16 N. H. 194; Cutter v. Butler, 25 N. H. 343; and Hayes v. Seavey, 69 N. H. 308, 46 Atl. Rep. 189. Conceding that the right extends to the release of every property interest, present and prospective, it cannot avail this plaintiff. Modern legislation enlarging the rights of married women as to contracts and torts has not destroyed the marital status, as defined by the common law. There is nothing in the series of statutes by which her rights and privileges have gradually approximated an equality with those of her husband that abrogates the marital rights of trust and confidence incident to the relation in all stages of society. * * The obligations, the disabilities, and the privileges inherently consesequent upon the married union remain unchanged. While unjust disabilities of the wife have been removed, there are implied stipulations of the contract which each party remains justly disable to violate." Laton v. Balcom, 64 N. H. 92, 95, 96, 6 Atl. Rep. 37, 39, 40. The incidental changes of conjugal rights and duties are such only as are reasonably and necessarily implied." Gross v. Grant, 62 N. H. 675, 685.

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These statutes have not taken away the right of either party to the marital contract to have the affection, society, and aid of the other." Ott v. Hentall (N. H.), 47 Atl. Rep. 80. An agreement renouncing marital rights is void. An agreement touching property rights may be valid. If covenants of each kind occur in the same agreement, its validity must be determined by the ordinary rules. If the promises are separate, and the consideration divisible, the legal part of the contract is upheld; but if the consideration is entire the whole must fail. Bixby v. Moor, 51 N. H. 402. Applying this test to the agreement in the present case, the result is at once apparent. The husband agreed to separate on friendly

terms, and to make no demand on the wife nor her property after that date. The wife made a similar agreement on her part. The agreement to live separate is not distinct from that as to property. There is no separate promise, upon separate consideration, as to the legal and illegal parts. They are blended together without discrimination. The wording of the writing and the facts surrounding the separation all tend to show that the dissolution of the marriage relation was the object the parties had in view. All other matters were merely incidental to this main purpose. The agreement was an attempt by a husband and wife to do that which the court could not have done, either upon the application of one of the parties or with the consent of both. They were desirous of dissolving the marital relation; and, although no cause for divorce existed, they entered into this agreement, whereby each attempted not only to release all the rights then held as against the other, but also to absolve the other from all duties attendant upon the married state. It is not an agreement made up of distinct parts, but a harmonious whole, the main object of which is the dissolution of the marriage tie. It had its inception in the wife's declaration of her intention to leave her husband's house. The agreement as to property is merely incidental, while anything in the nature of a provision for the support of the wife is wholly lacking. It is hardly open to doubt that if they had intended to continue to live as husband and wife, they would not have contracted as to property rights. In any event, it does not appear that there would have been such a contract, or that the agreement on that subject is independent of the illegal promise to separate. "Whether the illegality extends to the whole or only a part of the consideration is immaterial. The contract was entire, and in such case the whole is void if tainted with illegality in any part." Weeks v. Hill, 38 N. H. 199, 203; Hinds v. Chamberlin, 6 N. H. 225, 227. The executor also contends that his first reason for appeal that the defendant has no interest in the estate is well-founded, because the husband "willingly abandoned his wife, and has absented himself from her, or has willfully neglected to support her * *for the term of three years next preceding her death." Pub. Stat. ch. 185, § 18. The object of this statue is to deprive a wrongdoer of certain rights which he would otherwise possess. It applies to a "deserting husband," (Martin v. Swanton, 65 N. H. 10, 11, 18 Atl. Rep. 170, 171), and there is no desertion where there is a separation by agreement. Moores v. Moores, 16 N. J. Eq. 275, 280; 1 Bish. Mar. Div. & Sep. § 1662. There was here no abandonment and no willful neglect to support, in the sense in which those terms are used in the statute. There was do denial by the husband of any right which the wife desired to enjoy. She was not abandoned, but merely permitted to go the way of her own choosing. She was not willfully neglected, but was left to her own resources at her own request.

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