#### William Jardine, Plaintiff, *v.*Franklyn O’Hare, Defendant.

(Supreme Court, Albany Special Term,

January, 1910.)

Descent and distribution — Succession of surviving husband or wife — Separation agreement defeating right.

Where a husband and wife live apart and his wife agrees that she will not call upon her husband for support and will make no demands whatever upon him, and he, in turn, agrees not" to make any claim of any kind against his wife and releases her from any and all claims whatsoever, upon the wife’s death the husband is entitled to the same distributive share in her estate that he would have had if the parties had been living together and no such agreement had been made between them.

Nor are his rights affected by his commission of acts that would have given his wife grounds for procuring an absolute divorce against him, where no such divorce had in fact been obtained.

Demubbeb to complaint.

Jacob L. Ten Eyck, for plaintiff.

John H. Dugan, for defendant.

Chester, J.

The defendant demurs to the complaint for insufficiency. The plaintiff, as heir at law and next of kin of his daughter Emma O’Hare, brings the action for the purpose of having it adjudged that he is the sole and absolute owner of all the real and personal estate of which she died seized and possessed, subject to the payment of her debts and funeral expenses and the expenses of adminis*34tration of her estate. The defendant, Franklyn O’Hare, was her husband. In March, 1900, he and his wife entered into an agreement of separation because of unhappy differences which had arisen between them. In that the wife agreed that she would not call upon her husband for support and would make no demands whatever upon him; and he, in turn, agreed “ not to make any claim of any kind against his said wife, and releases her from any and all claims whatsoever.” Subsequently thereto she died, and letters of administration upon her estate were granted to the defendant, her husband. It may be conceded, for the purpose of this case, without deciding it, that the agreement of separation was valid. Regarding the agreement as valid, it could have no further effect upon the marital relations than would a judgment of separation in an action between them. Hnder either she would still remain his wife and he her husband. In the one case they would be living separate and apart by virtue .of the agreement, and in the other by virtue of the decree of separation. She would still have whatever rights the law gave her in his estate; and his rights in her estate, on the contrary, would not be affected thereby. There has been no divorce between the parties, and their marriage still remains in full force and effect.

The agreement between the parties cannot be regarded as a. waiver of any of their legal rights beyond the express terms thereof; and, while he agrees not to make any claim of any kind against her and releases her from any and all claims whatsoever, there is no release of any claims or rights which the law gives him in her estate upon her death.

The charge is made in the complaint in general language that, during certain months named, the defendant “ committed many acts of adultery with divers persons and treated the said Emma O’Hare in a vicious, cruel and inhuman manner ” ; but no divorce has ever been had, and this charge does not affect the marital rights of the husband in the wife’s estate. It has even been held, where an interlocutory decree of divorce on statutory grounds had been entered against a wife and where the husband died prior to the entry of the final decree, that a final decree thereafter entered was un*35warranted, extra-judicial and ineffective and did not prevent the wife’s right to dower in her husband’s estate. Bryon v. Bryon, 134 App. Div. 320. The same principle must apply with respect to a husband’s rights in his wife’s estate and to a charge of adultery against him. It cannot be held that such a charge, not followed by a final decree based on proof thereof, will affect the property rights of the parties. Pitts v. Pitts, 52 N. Y. 595; Schiffer v. Pruden, 64 id. 47.

If this view is correct, the complaint fails to state a cause of action and the demurrer must be sustained.

Demurrer sustained, with costs.