With that portion of the majority opinion dealing with the division of the property, I am unable to agree. I concede that the statute is as quoted and that it means what it says, but we have other statutes sanctioning conveyances from husband to wife and vice versa and permitting them to contract between themselves. When such a contract is made, and is conceded to be fair when made, it should be enforced just as contracts between strangers are enforced. It is here conceded that the contract of these parties was entirely fair when made, and that the only reason why one now possesses more than the other is that one class of property increased in value while the *Page 70 other did not. As to that, the parties took their chances, and having definitely provided that the division was a final one and that all subsequent increase and accumulation should belong separately to the one so acquiring, they are bound thereby. This is not like an instance of original separate property, where the husband is bound to provide for the wife's needs notwithstanding that there may be no joint accumulation, but here the parties have solemnly contracted each with the other as to their property interests, which should be final, if fair. Of course the contract does not relieve the husband from his duty to support the wife, and, even if it did, it might be argued that such a provision is against public policy, and in either event support money is allowable as alimony. The holding of the majority will, I fear, make insecure every property settlement heretofore and hereafter entered into by husband and wife, and cast a great burden of litigation upon the courts to no good purpose. A contrary rule, making all fair contracts final according to their terms, will harm no one, as the courts will still be free to award alimony to the wife in all cases when she has need of additional income and the husband is able to pay. Such should have been the ruling here. If the wife found her separate estate insufficient to provide for her reasonable needs in accordance with her station in life, an alimony allowance could have been awarded and made a lien upon the husband's estate, which would have left him still the right of testamentary disposition, or prior disposition in the event of the wife's death, of which he should not be deprived without good reason.
I therefore dissent as to the property settlement.
MACKINTOSH and HOLCOMB, JJ., concur with TOLMAN, C.J. *Page 71