erty belonging to the estate. Upon the hearing of the petition, the district court, sitting as a court of probate, granted. against the objections of the appellants, an order directing the sale by the executor of a certain portion of the real estate, in accordance with the prayer of the petition. From that order this appeal was prosecuted.

The respondent at the very outset challenges the standing of the appellants in this court, on the ground that under our Constitution and laws no appeal lies from such an order, because, as is insisted, it is not a final order. The Constitution, in section 9, art. 8, so far as material here, provides: "Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall be provided by law." By statute (section 3300, Rev. St. 1898) it is provided: "Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates." Under these provisions of the Constitution and statute it is clear beyond controversy that an appeal lies from the final orders as well as from the final decrees of a court made in the administration of decedent estates. The question remains, however, whether the order in dispute was a final order. We are of the opinion that this must be answered in the negative. A final order, as contemplated by the Constitution, is such an order as finally disposes of the subject as to which the order is made, so that the parties can proceed no further as to that branch of the proceeding or litigation. The order appealed from in this case was no such an order. The proceeding instituted by the application for the sale of the real estate had not been finally concluded. It had not yet become effective so as to put an end to the controversy respecting the sale of the property. There yet remained several requisites to be performed-the giving of notice of sale, the making of the sale, and the confirmation of sale-before the proceeding could become effective to pass title, and operate as a bar to a similar application for sale of the same property. It is clear that such an order is not final within the meaning and intent of the Constitution and statute. The object of the Constitution evidently is to prevent successive appeals where one will answer every purpose, and thus prevent the prolonging of litigation and the incurring of additional and useless expense. After the sale has been advertised, the property sold, and the sale confirmed, or confirmation refused, then any aggrieved party in interest has the right to appeal, and to have the proceeding reviewed. This case falls within the principles announced on several occasions by this court respecting the right of appeal under our laws. Steam Laundry v. Dole, 20 Utah, 469, 58 Pac. 1109; Wilson v. Meyer, 23 Utah, 529, 65 Pac. 488; Musser v. Edwards, 23 Utah, 425, 64 Pac. 1105; Ogden City v. Bear Lake & R. W. W. & I. Co., 16 Utah,

440, 52 Pac. 697, 41 L. R. A. 305; Popp v. Mining Co., 22 Utah, 457, 63 Pac. 185. The order here under consideration is analogous to an order in partition, determining the rights of the parties to have the partition made, appointing the commissioners to make the same and report their findings to the court. As to such an order in partition the Supreme Court of California in Hastings v. Cunningham, 35 Cal. 549, said: "The order for a partition, or for a sale in case a partition cannot be made without great prejudice to the owners, is not the final judgment in the action. They are to be succeeded by a judgment confirming the partition or sale." Gates v. Salmon, 28 Cal. 320; Peck v. Vandenberg, 30 Cal. 11.

Appeal dismissed. Costs of appeal to be taxed against the appellants.

BASKIN, C. J., and MCCARTY, J., concur.

PALMER et al. v. PALMER.

(Supreme Court of Utah. April 13, 1903.)

CONTRACT FOR DIVORCE-CONSTRUCTION-VALIDITY-PUBLIC POLICY-BAR TO WIDOW'S RIGHT OF INHERITANCE-COMITY.

1. The principal of comity cannot be invoked to require one state to enforce a contract entered into in another, where the contract is in contravention of the public policy of the state in which enforcement is sought.

2. A contract between a husband and wife recited that on account of irreconcilable differences a permanent separation was desirable, and a divorce in contemplation, and settled on her a very inadequate part of the property in lieu of alimony, and concluded with the express stipulation that they agreed, so far as permitted by law, to a dissolution of the marriage relation. It was shown that the wife was induced to sign the agreement on the representation that otherwise she would not receive any of the property, and that she instituted unsuccessful proceedings for divorce the next day after executing the contract. Held, that the contract was not one for a mere separation, but for the purpose of facilitating the securing of a divorce.

3. An agreement between husband and wife calculated to facilitate the securing of a divorce a vinculo matrimonii is contrary to public policy and void.

4. While a husband or wife, or both, may violate the terms and obligations of their marriage contract, yet neither one, nor both combined can rescind or modify it except as provided by the laws of the land.

5. Where a husband, through unfair advantage and unwarranted coercion, secured the signature of his wife to a contract to facilitate the procuring of a divorce, which he desired, and by such contract succeeded in gaining her consent to take as her share a fractional part of the property, such contract is void, as against public policy, and does not bar the wife from her right of inheritance in the property of the husband on his death.

Appeal from District Court, Salt Lake County; W. C. Hall, Judge.

3. See Contracts, vol. 11, Cent. Dig. §§ 517, 518.
4. Hilton v. Roylance, 69 Pac. 660, 25 Utah, 129,

58 L. R. A. 723; Norton v. Tufts, 57 Pac. 409, 19 Utah, 470.

This is an action in equity brought by heirs and the administrator of the estate of W. D. Palmer, deceased, against the defendant, to quiet title to certain property owned by the deceased in his lifetime. Among other things, it is alleged in the complaint that said W. D. Palmer and the defendant on December 27, 1886, intermarried, and cohabited as husband and wife until about April 24, 1899, when irreconcilable differences arose between them; that about August 11, 1899, a contract of separation was made and entered into, and the property rights settled between the parties thereto; that, in accordance with this contract, the wife received real estate situate in the city of Atlanta, state of Georgia, of the value of $12,000, subject to an incumbrance of $5,000, and furniture in the house upon the real estate of the value of $3,000, and cash in the sum of $6,500; that at the time of the execution of the contract the husband was worth not to exceed $30,000; that the property in question herein is situate in the state of Utah, where the husband resided from about the time of his permanent separation from his wife; that the defendant was a nonresident until his death; and that the husband carried out the terms of the agreement. The laws of the state of Georgia, under which the contract was claimed to have been made, were also pleaded. To the complaint the defendant filed a demurrer, which was overruled. Thereafter she filed an answer, in which, inter alia, she admitted the marriage, the execution of the contract, the residence of her husband in Utah since then, and her nonresidence. Affirmatively she then alleged that at the time of the death of the husband she became, and still is, the surviving wife and widow of the deceased; that, as such widow, the deceased having left no issue living, she is entitled, under the laws of Utah, to $5,000 in value of his real and personal property, and to one-half of the excess over $5,000 in value thereof; that after their marriage the husband treated her with kindness and consideration until he became addicted to the use of liquor in excess in "periodic sprees," when he was harsh, cruel, and vindictive to her; that her remonstrances against the drinking habits caused him to be only more harsh and vindictive toward her, until about the latter part of April, 1899, she, at the suggestion of her husband, who furnished her with the funds therefor, made a visit to Indianapolis, in the hope that upon her return he would treat her with his former kindness and consideration; that while so absent he sold out his property in the state of Georgia, left the state with the proceeds, notified her that he would never return while she was in the state, and concealed his whereabouts from her; that, while she was endeavoring to locate her husband,

H. L. Culberson, his cousin and attorney, and the pretended friend of the wife, offered to pay her $6,500, upon the express condition that she should agree to an absolute divorce. without alimony; that Culberson refused to disclose where her husband was, but informed her that he had left the state with all his property, and was beyond the jurisdiction of the courts of Georgia, and advised her, as her friend, to accept the offer of $6,500; that, not knowing the whereabouts of her husband, and relying upon the statements and protestations of friendship of Culberson, and being without means for her support, she agreed to accept the offer and execute the contract, which was signed and delivered under an express agreement, extorted from her, that she should proceed to procure a divorce from her husband; that on the next day after the execution of the contract a suit for divorce was filed in accordance with the dictations of the attorneys for her husband, which, upon trial, failed; that the contract was the result of fraud and improper influences exerted against her; that it was fraudulently obtained and is void; that the property mentioned in the complaint and in the contract as of the value of $12,000 was given to her by her husband in 1895, when his drinking habits had not yet estranged him from her, and at a time when her father had given him great assistance in his then financial embarrassment; that said property was of the value of about $9,500, subject to a mortgage of $5,000; and that at the time of the execution of the contract her husband was worth $50,000 in cash.

From the evidence it appears that on December 27, 1886, Mr. and Mrs. W. D. Palmer were married at Indianapolis, Ind., her maiden name being Ida Moody. Thereafter they lived at Macon and Atlanta, Ga., about 13 years, and had one child born to them, who died in childhood. When they moved to Atlanta, in 1890, Palmer had, in all, about $6,000, which he invested in stock in a brick plant. Shortly afterwards the other stockholders were about to "freeze him out." Mr. L. D. Moody, Mrs. Palmer's father, learning of this, came to her husband's rescue, advanced him money and credit, and saved him, it appears, from financial ruin. Up to August, 1898, the advancement of Moody to Palmer amounted to $17,333, and in February, 1899, Moody accepted in satisfaction for that amount the sum of $14,000. Palmer's business, it seems, was profitable, for in July, 1899, when he sold out, he cleared up about $42,000, of which about $30,000 was in cash, and $12,000 in a note of the purchaser; and this exclusive of the house given to his wife in 1895. In the course of time he developed drinking habits, which met with strong opposition from his wife, and resulted in disagreements between them. In the latter part of April, 1899, Mrs. Palmer made, with the sanction of her husband, who furnished her with the means with which to go, a visit to

her parents, at Indianapolis. After she was gone they corresponded together as husband and wife, and she says that, while his drinking habits had become almost unendurable, yet she fully expected to return and live with him. While she was so on the visit, her husband sold out his property without her knowledge, and on July 12, 1899, wrote her what he had done, and that he intended to leave the state of Georgia, never to return so long as she was in it; that he had left her residence undisturbed just as she had left it; that all communications must cease forever; and that he had instructed his cousin H. L. Culberson to render her any assistance he could in securing a divorce, which he thought was the best thing to do, under the circumstances. After receiving this letter, she returned to Atlanta, called on Culberson, and found that her husband had in fact gone, and taken his property in cash with him, but Culberson refused to reveal his whereabouts. She then employed attorneys to assist her to obtain her rights by suit or settlement, and went to New York, where she employed detectives to locate the whereabouts of her husband, in the hope of securing a settlement from him, or service of process, so as to settle the matter in court. Being, after much effort, unable to find him so as to get in direct communication with him, and not knowing or being able to ascertain what his real financial condition was, she finally agreed to accept an offer, made by her husband, through his friend, of the $6,500 mentioned in the contract; fearing, as had been suggested to her, that otherwise she might get nothing at all. Testifying concerning this, after stating that she went to New York, she, in part, said: "After further consultation with my attorneys, I went to New York, where I supposed Mr. Palmer was, and through detectives located him. I did not get to see him. Then I got a letter from Mr. Hanson saying Mr. Palmer had returned to Macon. I returned to Atlanta. After consultation with Tompkins & Alston, Mr. Alston went to Macon, had an interview with Mr. Hanson, and returned with an offer of $6,500 made by Hanson for Palmer. Judge Tompkins advised me to accept the $6,500, because it was the best I could do under the circumstances. At first I refused, but the next day, with this mortgage of $5,000 still hanging over me, and the thought that the foreclosure of it would lose me my home, I agreed to accept the $6,500, with the agreement that I was to file suit for divorce at once. It was about twelve days between the time I first saw Mr. Culberson and the time of the signing of the agreement. I was trying all that time to locate Mr. Palmer, and find out the things that were being concealed from me; that is, whether Mr. Palmer's property had been sold, or what it brought, or his whereabouts. I only succeeded in locating him in New York, but he evaded the detectives and got out of there. I did not draw that contract, neither did my attorneys. I

first saw the contract the day I signed it. I read it, and read so much of it which says: 'A divorce proceeding is in contemplation, and will be instituted by one or the other of said parties.' Pursuant to that agreement, I filed a divorce proceeding. It was filed the next day. I do not know whether or not the divorce petition was drafted when I signed the agreement, but I know it was to be drafted, and as a part of this settlement." After she accepted the terms and signed the contract, her husband, in response to a telephone message, appeared in the office of his attorney, and, in her absence, also signed the contract. The instrument was executed August 11, 1899, and the next day the divorce proceedings were instituted, but upon trial before a jury the case failed. Soon after the execution of the contract, the husband came to this state, purchased the property involved in this controversy, and resided here until May, 1901, when he died intestate. His wife, it appears, never saw him again after she left home for her visit at Indianapolis. At the trial of the cause the court entered a decree quieting the title to the property in the piaintiffs, and held that the defendant is perpetually estopped and enjoined from setting up any claim to any part thereof. Thereupon the defendant prosecuted this appeal.

Pierce, Critchlow & Barrette, for appellant. Stephens & Smith and W. B. Willingham, for respondents.

A statement of the case as above baving been made, BARTCH, J., delivered the opinion of the court.

The principal and decisive question in this case is whether the contract pleaded and relied upon by the plaintiffs is valid and bars the widow's right of inheritance. So far as material here, it reads: "Whereas, irreconcilable differences have arisen between W. D. Palmer and his wife, Ida M. Palmer, and in consequence thereof a permanent separation between them is desirable, and a divorce proceeding is in contemplation and will be instituted by one or the other of said parties, for the legal dissolution of the marriage tie existing; and, whereas, the said W. D. Palmer is willing to make a satisfactory settlement upon and with the said Ida M. Palmer in lieu of all claims for alimony against him, either temporary or permanent." And then, after mentioning the property the wife was to have, which is the same as that described in the pleadings, and making some stipulations in respect thereof, it concludes: "Now, therefore, this instrument of writing witnesseth the mutual agreement, contract and settlement above described, and the said Ida M. Palmer hereby acknowledges the receipt of said sum of money cash in hand paid by him, the said W. D. Palmer, and in consideration thereof as well as the amounts heretofore received, hereby acknowledges full and satisfactory payment by him of all claims she has against him, and agrees in consideration thereof to,

and does hereby, release him from all liability past, present or future for her support, maintenance or comfort, and they both hereby contract and agree so far as they are by law permitted to do, each for the other, to full and final separation and dissolution of the marriage relation, and all responsibility of every character of the one for the other is hereby forever ended."

The appellant, among other things, contends that this is a contract between husband and wife, entered into for the purpose of procuring a divorce, or of facilitating such a result, and is therefore collusive and void. The respondents insist that it amounts merely to a separation agreement, settling the property rights of the parties, and that it is authorized by the laws of the state of Georgia, where it was made and executed, and should be enforced, through comity, in this state.

Whether or not the contract is valid and enforceable under the laws and decisions of the state of Georgia, it is not necessary to decide, for it clearly appears from the face of the instrument that it is invalid under our laws and decisions; and, when read in the light of the facts and circumstances disclosed by the evidence, the conclusion becomes irresistible that it ought not to and cannot be enforced in this state, even if enforceable in the state where made. The principle. of comity cannot be invoked to enforce the laws of a foreign state which are inimical to the interests of the state where their enforcement is sought. Nor will a contract executed in one state be enforced in another if it is in contravention of the public policy of the latter state. Comity between different states requires no state to uphold or enforce contracts which injuriously affect the welfare of its subjects, or contravenes its own laws, institutions, or policy. In such cases, when the lex loci contractus comes in conflict with the lex fori, comity must yield to the positive law and policy of the forum. Story on Con

flict of Laws, § 327; Pope v. Hanke, 155 Ill. 617, 40 N. E. 839, 28 L. R. A. 568; Seamans v. Temple Co., 105 Mich. 400, 63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457.

We are clearly of the opinion that the contention of the appellant is sound. That the contracting parties contemplated a divorce a vinculo matrimonii seems apparent. Differences had arisen between husband and wife which appeared to them irreconcilable, and in the very first sentence of the instrument it is stated expressly that "a permanent separation between them is desirable, and a divorce proceeding is in contemplation and will be instituted by one or the other of said parties, for the legal dissolution of the marriage ties existing." This language is plain, unambiguous, and clearly shows that the design of the parties was to absolve all marital relations existing between them; and, if there is any doubt that the contemplated divorce was a moving cause for the contract,

such doubt would seem to be removed upon perusing and considering the concluding paragraph of the instrument, where they say "they both hereby contract and agree so far as they are permitted to do, each for the other, to full and final separation and dissolution of the marriage relation, and all responsibility of every character of the one for the other is hereby forever ended." In the face of such language, is it not idle to say or contend, as do counsel for the respondents, that this is a mere contract for separation, and cannot be construed into an agreement to facilitate a divorce? The parties to the instrument say “a divorce proceeding is in contemplation," and that they agree, so far as they think the law permits them to do, "to full and final separation and dissolution of the marriage relation." They, in effect, stipulate that all their marital responsibilities shall be forever ended. It is difficult to see by what process of reasoning such a contract can be construed to be anything else than an agreement to facilitate a divorce, or an attempt to put an end to the marriage status by mutual agreement of the parties. It is true it was not stipulated in the instrument which one of the parties was to institute the divorce proceedings in court, but that appears from the testimony. So the consideration and motive which induced the parties to enter into and execute the contract appears from the evidence, as well as upon the face of the instrument itself.

The wife, in substance, testified that before the execution of the contract she was unwilling to have a divorce; that when given to understand that a divorce was the consideration in order for her to get anything from her husband, who was keeping himself concealed from her, she refused to apply for one; that she then employed Tompkins & Alston, as her attorneys, to assist her in procuring a settlement; that finally, through a mutual friend, her husband offered her the $6,500 mentioned in the contract, in addition to the other property referred to therein; that upon the advice of her counsel to accept it, as the best she could do under the circumstances, and fearing the mortgage of $5,000, which was hanging over her, and which might lose her her home, she accepted the offer, with the agreement that she was to file suit for divorce at once, although she had at first refused to do so; and that the next day after the execution of the contract, pursuant to and in fulfillment of the agreement, the divorce proceedings were instituted by her, the papers for which had been prepared as a part of the settlement. The witness further stated: "The reasons Judge Tompkins assigned for advising me to accept the offer of settlement were that there was no property belonging to Mr. Palmer in the state that we could attach; that he had the cash, and he could get out of the state, and I couldn't get service on him; therefore he had put himself in a position where it