The petition as amended stated a cause of action against the executor of the plaintiff's wife for breach of an alleged agreement between the husband and wife, whereby she agreed to will him her estate if he would return to the marital domicile and resume the marital status, which he did, but which agreement the wife failed to perform before her death.

DECIDED FEBRUARY 17, 1953.

Fred C. DeLoach filed suit in the Superior Court of Fulton County against First National Bank of Atlanta, as executor of the will of Hazel Conklin DeLoach, in which he sought to recover of said executor damages in the approximate sum of $16,500, which he alleged were sustained by him because of the breach of a parol contract between the plaintiff and the deceased. The petition as twice amended showed substantially the following facts: that Hazel Conklin DeLoach, the wife of the plaintiff, made a will in which she named the defendant as her executor, and devised therein all of her property to her parents. Curtis S. Conklin and his wife, Mrs. Curtis S. Conklin; that this property had not been distributed and is now in the defendant's possession; that substantially all of said property was purchased by the deceased with money earned by the plaintiff, her husband; that after the execution of this will, the plaintiff and his wife. Hazel Conklin DeLoach, now deceased, became separated and estranged, the plaintiff living apart from her; that during this time, in April 1950, she and the plaintiff entered into an oral agreement and contract, whereby the plaintiff agreed to return home and resume his marital relation with her and in return she agreed she would make another will and leave all of her property to the plaintiff; that the plaintiff thereupon returned to his wife and lived with her until her death, October 10, 1950; that the said deceased failed to perform her agreement and undertaking, and upon her death her property went to the beneficiaries in said first will, her parents; and that the said First National Bank of Atlanta was named and qualified as her executor. The plaintiff set up that the contract had been breached by the failure of the defendant's testate to make the will as agreed, although the plaintiff returned to the marital domicile and made a bona fide effort towards reconciliation with the deceased, and actually effected same and until her death lived with her as her husband and performed to the letter and spirit of said agreement; yet the deceased died without revoking or changing the will first made by her, which constituted a breach of the agreement with the plaintiff, occurring upon the date of her death, which has caused hardship, loss, and damage to the plaintiff of $30,000 plus interest at seven percent from the date of his wife's death, for which judgment was prayed.

By amendment the plaintiff reduced the value of the estate to $16,500, and amplified the allegations of the original petition as to the said agreement; and again on November 5, 1952, the plaintiff filed a further amendment, in which he set out that he had never been divorced from his wife during the time set out in the petition as amended, that the separation and estrangement between the plaintiff and his wife was not the result of misconduct on his part, and that he did not have to return to and reunite with his wife and would not have done so except for the contract alleged.

The defendant demurred to the petition both generally and specially, and to various paragraphs thereof; and on May 21, 1952, the plaintiff's first amendment was filed, and thereto the defendant demurred and also renewed its general and special demurrers to the petition as amended. On November 5, 1952, the second amendment to the petition was filed, and to this amendment the defendant demurred and renewed its demurrers theretofore filed, and also renewed its demurrers to the original petition, and to the said petition as amended on November 5, 1952.

On November 25, 1952, said demurrers came on to be heard before Honorable Jesse M. Wood, Judge of Fulton Superior Court, and judgment was rendered overruling all of said demurrers and renewals thereof, to which judgment the defendant excepted directly to this court.

GARDNER, P. J.

After careful consideration of the petition as twice amended and the law applicable thereto, we are of the opinion that the trial judge correctly overruled the demurrers, and that the petition set out a cause of action based on the contract between the plaintiff and his deceased wife. The agreement sued on was not void because contrary to public policy, as strenuously insisted by able counsel for the defendant executor, nor because to enforce this contract would be to cheapen, degrade, and render less sacred the matrimonial state — over which has always hovered a mantle of purity and holiness — which has been set apart in the minds and hearts of a Christian people as a union made holy and sacred by mutual love and respect when entered into, and which has never been looked upon by society as merely a legal contract in the strictly commercial sense. It is our opinion that the contract here sued on does not tend to cheapen and commercialize the marriage relationship and place the same upon a purely meretricious basis. This marriage relationship here had become seriously strained. Its harmonious continuance had been disrupted. It stood in imminent danger of being permanently severed. The parties thereto had become estranged and, while they had not become legally parted by decree of divorcement, there was danger thereof. The plaintiff and his wife had separated and no longer lived under the same roof. The wife, being desirous of restoring the marital relationship — a worthy desire — before it should be entirely too late, made this agreement with the plaintiff, her husband, under which he was to return home and resume their cohabitation, and the wife was to leave her entire property to him. There was nothing illegal or contrary to public policy in this undertaking. The plaintiff performed his part, and the wife failed in her part of the agreement. It is possible that the wife would have changed her first will had she not passed away so soon after the parties had resumed their marital relationship. Who can say? She lived only a little more than five months after the contract was made. There is nothing unusual in the consideration. In this State, had she died without a will, the husband would have taken. Code, § 113-902. Furthermore, the husband alleged that substantially all of the property had been purchased with money which he had earned. It appeared that until their temporary estrangement the parties had lived together many years, presumably in a happy and blissful state. We cannot agree with counsel for the defendant executor that this contract to restore the marital relationship is void because against public policy. See generally, in this regard, Banks v. Howard, 117 Ga. 94 ( 43 S.E. 438), to the effect that agreements to make a will and leave property to another, in consideration of the other party performing some undertaking, which that person performs, have been upheld and enforced. Gordon v. Spellman, 145 Ga. 682 ( 89 S.E. 749); Heery v. Heery, 144 Ga. 467 ( 87 S.E. 472). "An agreement the object of which is to restore marital relations after a separation has taken place will generally be upheld." 17 C. J. S. 621, § 236; 13 C. J. 466, § 408. It is the policy of our law to declare agreements to sever the marriage relation invalid. Ozmore v. Ozmore, 179 Ga. 339 (3) ( 175 S.E. 789); Birch v. Anthony, 109 Ga. 349 ( 34 S.E. 561). This being so, it would seem that agreements to restore that relationship certainly ought not to contravene public policy of the State. See Evans v. Hartley, 57 Ga. App. 598, 601 ( 196 S.E. 273) and cit.

It follows that the petition as amended stated a cause of action, and that the court did not err in overruling the demurrers thereto.

Judgment affirmed. Townsend and Carlisle, JJ., concur.