The record-union., 1896-06-20
HE FORFEITED Hts RIGHTS.
LaYlna Jones Husband Cannot Have Her
Estate.
Vhey Divided Their Property and
Agreed to Live Separate
and Apart.


The contest over the possession Of the
estate left by the late Lavina Jones
was settled yesterday by Judge john
son. Mrs. Jones died here some months
ago. leaving an estate valued at several
thousand dollers. She had sent for her
lawyer, w. P. Harlow, to prepare her
will, but died before he arrived.
Mrs. Jones' husband, from whom she
had been separated by mutual agree
ment, put in a claim for the estate as
against that of some children OF
deceased sister Judge Johnson de-
cides against the husband, and his de-
cision is as follows:
THE DECISION.
On the 29th day of May, 1884, the de-
ceased and her husband, Cadwallader
Jones, having had some differences as
husband and wife, entered into an
agreement in writing, signed and ac-
knowledged, whereby they mutually
agreed to divide their property and to
live separate and apart from each
other. They did divide their property,
and did henceforth live separately. de-
ceased taking up her residence shortly
thereafter in Sacramento City, where
she remained until her death, a few
months since, he going to a distant
portion of the State and remaining till
q few months after her death.
Deceased died intestate and without
lineal heirs and had no brothers or
sisters surviving her. Her husband
asks the court to distribute the estate
to him for the reason that, under our
statute, when there are no lineal heirs
nor brothers nor sisters, the whole es-
tate goes to the surviving wife or hus-
band. The surviving husband would be
entitled to have the entire estate set
over to him, unless he is estopped by
reason of the agreement referred to.
His right to thus inherit is contested
by the children of a deceased sister,
who stand next in the line of success
ion If the husbands claims are reject
ed.
It will be necessary to see what effect
the contract will have upon the ques-
tlon- The principle that married par
ties may make post-nuptial contracts
is upheld and sustained by authority.
(Wells VS.. Stout, 8 Cal 479; in re Davis,
106 Cal. 453; Labbe's heirs, = La. 253;
Bratton VS.. Murphy, Is S. c. 277; Wal
lace VS.. Bassett, IL; Barbour 90; Hit
ner's Appeal, 81 Penn, State 40; Rain
sor vs., Wheeler, rs Tex. 800; Dillenger's
Appeal. 35 Penn, State 357; Scott's
Estate, 147; Penn. State, 1922
In fact, Sections 15S and 159 of the
Civil Code expressly recognizes that
right, and our Supreme Court Gin re
Davis, 1o6 Cal 453) expressly says that
a husband and wife may enter into a
written agreement whereby they may
be debarred from all right of inherit
ance. It says: THE agreement Of sep
aration entered into between Davis
and his wife was a contract which they
were competent to make with one an
other, and in fact expressly authorized
by the statutes. Civil Code, Secs. 15S-
159) It rested upon a. good and suffi-
cient consideration, and was fully car
lied out. The obvious purpose was
not only definitely to sever the property
rights of the parties, but mutually to
relinquish and release all Unbeatable
interest of each in the property and eS-
tate of the other 1t was apt and am
pie in form for the purpose, and that
such was the effect we have no doubt"
A case directly in point may be found
IN 141 Penn. State, 141 entitled Scott's
Estate. There the court decides that
an agreement between husband and
wife to live separate and apart, if based
upon a. good consideration and reason
able in its terms, will be as valid and
binding upon the wife as upon the
husband, and wife who by such agree
ment fully performed in good faith
during the lifetime of the husband re-
leases him from all duties, liabilities
and obligations of every kind whatso-
ever, which otherwise she might or
could claim under or by virtue of the
marriage relation, IS barred from claim
and share of his estate under the intes-
tate laws" (See also Hitner's Appeal,
"a Penn. State, 110; Wallace VS.. Bas-
sett 81 Barbour, 92)
I shall then confine my attention to
the contract of separation between Jones
and deceased. 1t is as follows:
This agreement, made the Doth
day Of May, 1884, between Cadwallader
Jones of Sutter County, California, the
party of the first part, and Lavina
jones, his wife, of the same place, the
party of the second part,
"Witnesseth, That whereas, differ
enoes have arisen between said parties,
and they have agreed to live separate
and apart from each other,
Therefore, it is agreed by said first
party, that said second party shall re-
ceive from the sale of the homestead
o. the parties hereto the sum Of 50, $50
and onc-half Of the net proceeds of all
the personal property belonging to said
parties and one bay mare, Kittie, and
that said second party shall be re-
leased from every and all obligations
of every kind and character, and shall
not he held liable for any debts of said
first party.
I'm consideration whereof, said second
party agrees that she accepts in release
and full payment from said first party
the foregoing sums of money, for any
and every demand. claim, obligations,
debt and liability, and does by these
presents agree to release him, said first