Jones v. Lamont

CHIPMAN, C. Appeal from decree of distribution. The controversy arises out of a certain contract of separation between deceased in her lifetime and her surviving husband, appellant. The court found that the husband had no interest in the wife’s estate, she having died intestate. The court also found that shortly prior to May 29, 1884, the said deceased commenced an action' against her said husband for divorce and division of the property: that a compromise was agreed to on said day last named, pursuant to which the agreement in question was entered into [500]and the suit for divorce and division of the property was dismissed; whereupon the parties separated, and so continued, holding no communication as husband and wife until her death, November 3, 1895. The appeal is on the judgment-roll presented by bill of exceptions.

The sole question presented by appellant is, "whether or not the separation agreement in question amounts to a waiver or release by appellant of his right to succeed to all or any portion of his wife’s estate.”

The agreement is as follows:

“This agreement, made the 29th day of May, 1884, between Oadwaladcr 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 differences 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 receive from the sale of the homestead of the parties hereto the sum of $2,850, and one-half of the net proceeds of all the personal property belonging to said parties, and one bay mare named Kittie, and that said second party shall be released from every and all obligations of every kind and character, and shall not be held liable for any of the debts of said first party.

“In consideration whereof, said second party agrees that she accepts in release and full payment from said first party the foregoing sum of money, for any and every demand, claim, obligation, debt, and liability, and does by these presents agree to release him, said first party, from all and any debt which she may now owe, or which may hereafter be contracted by her.

“And it is expressly understood and agreed by both parties hereto that each party is hereby released and absolved from all obligations and liability for the future acts and debts of each other, and that said first party shall retain and have one bay filly, Daisy, and that the remainder of said personal property shall be sold at auction within three weeks from this date, and that on the day of the sale the auctioneer shall divide the net proceeds of such sale equally between said first and second parties.”