1. Petitioner and her husband entered into an agreement for
settlement of their property rights, conditioned on the entry of a
decree of divorce in a suit then pending in Nevada. The divorce
court approved the agreement and entered a decree of divorce. Both
the agreement and the decree provided that the agreement should
survive the decree. A federal gift tax was assessed on the amount
by which the value of the property transferred to the husband
exceeded that received by petitioner.
the federal gift tax (26 U.S.C. §§ 1000, 1002)
was not applicable. Pp. 340 U. S.
2. Petitioner having died since the submission of this case, and
an administrator of her estate having not yet been appointed, the
judgment of this Court is entered as of the date the case was
submitted, in pursuance of the practice obtaining in those
circumstances. Pp. 340 U. S.
178 F.2d 861, reversed.
The Commissioner's determination of a gift tax deficiency for
1943 was expunged by the Tax Court. 10 T.C. 741. The Court of
Appeals reversed. 178 F.2d 861. This Court granted certiorari,
limited to questions 2 and 3 presented by the petition. 339 U.S.
340 U. S. 113
Page 340 U. S. 107
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The federal estate tax and the federal gift tax, as held in a
line of cases ending with Commissioner v. Wemyss,
324 U. S. 303
Merrill v. Fahs, 324 U. S. 308
construed in pari materia,
since the purpose of the gift
tax is to complement the estate tax by preventing tax-free
depletion of the transferor's estate during his lifetime. Both the
gift tax [Footnote 1
] and the
estate tax [Footnote 2
Page 340 U. S. 108
made for "an adequate and full consideration in money or money's
worth." In the estate tax, this requirement is limited to
deductions for claims based upon "a promise or agreement,"
] but the
consideration for the "promise or agreement" may not be the release
of marital rights in the decedent's property. [Footnote 4
] In the Wemyss
cases, the question was whether the gift tax was
applicable to premarital property settlements. If the standards of
the estate tax were to be applied ex proprio vigore
gift tax cases, those transfers would be taxable, because there was
a "promise or agreement" touching marital rights in property. We
sustained the tax, thus giving "adequate and full consideration in
money or money's worth" the same meaning under both statutes
insofar as premarital property settlements or agreements are
The present case raises the question whether Wemyss
require the imposition of the gift tax in the type
of post-nuptial settlement of property rights involved here.
Petitioner divorced her husband, Reginald Wright, in Nevada in
1943. Both she and her husband had substantial property interests.
They reached an understanding as respects the unscrambling of those
interests, the settlement of all litigated claims to the separate
properties, the assumption of obligations, and the transfer of
Wright received from petitioner the creation of a trust for his
lifetime of the income from her remainder interest in a
then-existing trust; as assumption by her of an indebtedness of his
of $47,650, and her promise to pay him $416.66 a month for ten
Petitioner received from Wright 21/90 of certain real property
in controversy; a discontinuance of a partition
Page 340 U. S. 109
suit then pending; an indemnification from and assumption by him
of all liability on a bond and mortgage on certain real property in
London, England, and an indemnification against liability in
connection with certain real property in the agreement. It was
found that the value of the property transferred to Wright exceeded
that received by petitioner by $107,150. The Commissioner assessed
a gift tax on the theory that any rights which Wright might have
given up by entering into the agreement could not be adequate and
If the parties had, without more, gone ahead and voluntarily
unraveled their business interests on the basis of this compromise,
there would be no question that the gift tax would be payable. For
there would have been a "promise or agreement" that effected a
relinquishment of marital rights in property. It therefore would
fall under the ban of the provision of the estate tax [Footnote 5
] which, by judicial
construction, has been incorporated into the gift tax statute.
But the parties did not simply undertake a voluntary contractual
division of their property interests. They were faced with the fact
that Nevada law not only authorized, but instructed, the divorce
court to decree a just and equitable disposition of both the
community and the separate property of the parties. [Footnote 6
] The agreement recited that it was
executed in order to effect a settlement of the respective property
rights of the parties "in the event a divorce
Page 340 U. S. 110
should be decreed;" and it provided that the agreement should be
submitted to the divorce court "for its approval." It went on to
"It is of the essence of this agreement that the settlement
herein provided for shall not become operative in any manner, nor
shall any of the Recitals or covenants herein become binding upon
either party, unless a decree of absolute divorce between the
parties shall be entered in the pending Nevada action."
If the agreement had stopped there, and were, in fact, submitted
to the court, it is clear that the gift tax would not be
applicable. That arrangement would not be a "promise or agreement"
in the statutory sense. It would be wholly conditional upon the
entry of the decree; the divorce court might or might not accept
the provisions of the arrangement as the measure of the respective
obligations; it might indeed add to or subtract from them. The
decree, not the arrangement submitted to the court, would fix the
rights and obligations of the parties. That was the theory of
Commissioner v. Maresi,
156 F.2d 929, and we think it
Even the Commissioner concedes that that result would be correct
in case the property settlement was litigated in the divorce
action. That was what happened in Commissioner v.
163 F.2d 131, where the divorce court decreed a
lump-sum award in lieu of monthly payments provided by the
separation agreement. Yet, without the decree, there would be no
enforceable, existing agreement whether the settlement was
litigated or unlitigated. Both require the approval of the court
before an obligation arises. The happenstance that the divorce
court might approve the entire settlement, or modify it in
unsubstantial details, or work out material changes, seems to us
unimportant. In each case, it is the decree that creates the rights
and the duties, and a decree is not a "promise or agreement" in any
sense -- popular or statutory.
Page 340 U. S. 111
But the present case is distinguished by reason of a further
provision in the undertaking and in the decree. The former provided
that "the covenants in this agreement shall survive and decree of
divorce which may be entered." And the decree stated, "[i]t is
ordered that said agreement and said trust agreements forming a
part thereof shall survive this decree." The Court of Appeals
turned the case on those provisions. It concluded that, since there
were two sanctions for the payments and transfers -- contempt under
the divorce decree and execution under the contract -- they were
founded not only on the decree, but upon both the decree and a
"promise or agreement." It therefore held the excess of the value
of the property which petitioner gave her husband over what he gave
her to be taxable as a gift. 178 F.2d 861.
We, however, think that the gift tax statute is concerned with
the source of rights, not with the manner in which rights, at some
distant time, may be enforced. Remedies for enforcement will vary
from state to state. It is "the transfer" of the property with
which the gift tax statute is concerned, [Footnote 7
] not the sanctions which the law supplies to
enforce transfers. If "the transfer" of marital rights in property
is effected by the parties, it is pursuant to a "promise or
agreement" in the meaning of the statute. If "the transfer" is
effected by court decree, no "promise or agreement" of the parties
is the operative fact. In no realistic sense is a court decree
Page 340 U. S. 112
"promise or agreement" between the parties to a litigation. If
finer, more legalistic lines are to be drawn, Congress must do
If, as we hold, the case is free from any "promise or agreement"
concerning marital rights in property, it presents no remaining
problems of difficulty. The Treasury Regulations [Footnote 8
] recognize as tax-free
"a sale, exchange, or other transfer of property made in the
ordinary course of business (a transaction which is bona
at arm's length, and free from any donative
This transaction is not "in the ordinary course of business" in
any conventional sense. Few transactions between husband and wife
ever would be, and those under the aegis of a divorce court are
not. But, if two partners on dissolution of the firm entered into a
transaction of this character, or if chancery did it for them,
there would seem to be no doubt that the unscrambling of the
business interests would satisfy the spirit of the Regulations. No
reason is apparent why husband and wife should be under a heavier
handicap absent a statute which brings all marital property
settlements under the gift tax.
We are now advised that, since submission of the case on October
16, 1950, petitioner has died, and that it will
Page 340 U. S. 113
take some weeks before an administrator of her estate can be
appointed. Accordingly, we enter our judgment as of October 16,
1950, in pursuance of the practice obtaining in those
circumstances. See Mitchell v. Overman, 103 U. S.
, 103 U. S. 64
McDonald v. Maxwell, 274 U. S. 91
274 U. S. 99
Section 1002 of 26 U.S.C. (1946 ed.), provides:
"Where property is transferred for less than an adequate and
full consideration in money or money's worth,
then the amount
by which the value of the property exceeded the value of the
consideration shall, for the purpose of the tax imposed by this
chapter, be deemed a gift, and shall be included in computing the
amount of gifts made during the calendar year."
Section 812 of 26 U.S.C. (1946 ed.), provides:
"For the purpose of the tax, the value of the net estate shall
be determined, in the case of a citizen or resident of the United
States by deducting from the value of the gross estate -- . . . (b)
Expenses, losses, indebtedness, and taxes.
Such amounts --
. . . (3) for claims against the estate, (4) for unpaid mortgages
upon, or any indebtedness in respect to, property where the value
of decedent's interest therein, undiminished by such mortgage or
indebtedness, is included in the value of the gross estate, . . .
as are allowed by the laws of the jurisdiction, whether within or
without the United States, under which the estate is being
administered, but not including any income taxes upon income
received after the death of the decedent, or property taxes not
accrued before his death, or any estate, succession, legacy, or
inheritance taxes. The deduction herein allowed in the case of
claims against the estate, unpaid mortgages, or any indebtedness
shall, when founded upon a promise or agreement,
limited to the extent that they were contracted bona fide and
for an adequate and full consideration in money or money's
. . . For the purposes of this subchapter, a
or promised relinquishment of dower, curtesy,
or of a statutory estate created in lieu of dower or curtesy, or
of other marital rights in the decedent's property or estate,
shall not be considered to any extent a consideration 'in money or
§ 812(b), supra, note 2
At the time of the divorce, Nevada Compiled Laws (Supp.
1931-1941), § 9463 provided:
"In granting a divorce, the court may award such alimony to the
wife and shall make such disposition of the community and separate
property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties and to the condition
in which they will be left by such divorce, and to the party
through whom the property was acquired, and to the burdens, if any,
imposed upon it for the benefit of the children. . . ."
Section 1000 of 26 U.S.C. (1946 ed.), provides:
"(a) For the calendar year 1940 and each calendar year
thereafter, a tax, computed as provided in section 1001, shall be
imposed upon the transfer
during such calendar year by any
individual, resident or nonresident, of property by gift. . . . (b)
The tax shall apply whether the transfer
is in trust or
otherwise, whether the gift is direct or indirect, and whether the
property is real or personal, tangible or intangible; but, in the
case of a nonresident not a citizen of the United States, shall
apply to a transfer
only if the property is situated
within the United States."
Section 86.8 of Treas.Reg. 108 provides:
"Transfers reached by the statute are not confined to those only
which, being without a valuable consideration, accord with the
common law concept of gifts, but embrace, as well, sales,
exchanges, and other dispositions of property for a consideration
in money or money's worth to the extent that the value of the
property transferred by the donor exceeds the value of the
consideration given therefor. However, a sale, exchange, or other
transfer of property made in the ordinary course of business (a
transaction which is bona fide,
at arm's length, and free
from any donative intent), will be considered as made for an
adequate and full consideration in money or money's worth. A
consideration not reducible to a money value, as love and
affection, promises of marriage, etc., is to be wholly disregarded,
and the entire value of the property transferred constitutes the
amount of the gift."
MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BLACK, MR.
JUSTICE BURTON and MR. JUSTICE MINTON, dissenting.
Section 503 of the Revenue Act of 1932 imposes a gift tax on
property "transferred for less than an adequate and full
consideration in money or money's worth." 47 Stat. 247, now. I.R.C.
§ 1002, 26 U.S.C. § 1002. In Merrill v. Fahs, 324 U.
, the Court held that an antenuptial settlement is
subject to this tax. [Footnote 2/1
Believing, as I do, that the disposition of the case before us
largely depends on the weight given to the considerations which
there prevailed, recapitulation of them is appropriate. The Court
there based its result on the conclusion that a transfer of
property pursuant to an antenuptial settlement was not made in
exchange for "an adequate and full consideration in money or
money's worth." This conclusion was reinforced by reading into the
gift tax provision the gloss of the interrelated estate tax of the
same year that the relinquishment of "marital rights . . .
Page 340 U. S. 114
shall not be considered to any extent a consideration `in
money or money's worth.'" Revenue Act of 1932, § 804, 47 Stat. 280,
now I.R.C. § 812(b), 26 U.S.C. § 812(b).
The case before us concerns not an antenuptial agreement, but
what the Tax Court called a "property settlement agreement,"
contracted in anticipation of divorce. Each spouse transferred
property of substantial value to the other and each agreed "to
release completely the property of the other from all claims
arising out of their marriage." 10 T.C. 741, 743.
Unless we are now to say that a settlement of property, in
winding up, as it were, a marriage, smacks more of a business
arrangement than an antenuptial agreement, and therefore satisfies
the requirement of "an adequate and full consideration in money or
money's worth" which we found wanting in Merrill v. Fahs,
and unless we are further to overrule Merrill v. Fahs
insofar as it joined the gift tax and the estate tax of the Revenue
Act of 1932, so as to infuse into the gift tax the explicitness of
the estate tax in precluding the surrender of marital rights from
being deemed to any extent a consideration "in money or money's
worth," we must hold that a settlement of property surrendering
marital rights in anticipation of divorce is not made for "an
adequate and full consideration in money or money's worth."
The same year that it enacted the gift tax, Congress amended the
estate tax by adding to the provision that "adequate and full
consideration" was prerequisite to deduction of "claims against the
estate" the phrase, "when founded upon a promise or agreement."
Revenue Act of 1932, § 805, 47 Stat. 280, now I.R.C. § 812(b), 26
U.S.C. § 812(b). Legislative history demonstrates that this
amendment was intended not to change the law, but to make clear
that the requirement of consideration did not prevent "deduction of
liabilities imposed by law or arising out of torts." H.R.Rep. No.
708, 72d Cong., 1st Sess. 48;
Page 340 U. S. 115
S.Rep. No. 665, 72d Cong., 1st Sess. 51. A similar principle is
implicit in the gift tax. By its statutory language and
authoritative commentaries thereon, Congress did not leave the
incidence of the gift tax at large by entrusting its application to
the play of subtleties necessary to finding a "donative intent."
Commissioner v. Wemyss, 324 U. S. 303
324 U. S. 306
But while, by the gift tax, Congress meant "to hit all the protean
arrangements which the wit of man can devise that are not business
transactions" to the common understanding, Commissioner v.
a gift tax is an exaction which does presuppose
the voluntary transfer of property, and not a transfer in obedience
to law. In Merrill v. Fahs, supra,
at 324 U. S. 313
we stated that
"to interpret the same phrases in the two taxes concerning the
same subject matter in different ways where obvious reasons do not
compel divergent treatment is to introduce another and needless
complexity into this already irksome situation."
Application of that principle would require the Court to hold
that § 503 of the Revenue Act of 1932, I.R.C. § 1002, imposes a tax
on "the amount by which the value of the property [transferred
exceeds] the value of the consideration" received only when the
transfer is "founded upon a promise or agreement." The taxpayer
does not contest applicability of the principle, and, in the view
we take of the case, it may be assumed. [Footnote 2/2
] Taxpayer contends (1) that the transfers
in the situation now before us were or must be deemed to have been
for an "adequate and full consideration in money or money's worth,"
and (2) that the Commissioner imposed a liability which
Page 340 U. S. 116
was not "founded upon a promise or agreement." Her position was
sustained by the Tax Court, 10 T.C. 741, but rejected by the Court
of Appeals for the Second Circuit. 178 F.2d 861.
1. I would adhere to the views we expressed in the
decisions as to the meaning to
be given to the requirement of "adequate and full consideration" in
the enforcement of the gift tax "in order to narrow the scope of
tax exemptions." 324 U.S. at 324 U. S. 312
Nor would I depart from the conclusion there reached that the
relinquishment of marital rights is not to be deemed "money or
money's worth" because that definition in the estate tax of 1932
is, by implication, to be read into the gift tax passed in the same
2. But was the transfer of the property here in controversy
"founded upon a promise or agreement"? The answer requires recital
of the governing facts of the case.
Taxpayer separated from her husband in August, 1942, and,
shortly thereafter, brought suit in Nevada for divorce. One week
prior to entry of the divorce decree, she and her husband entered
into an agreement
"for the purpose of settling the respective property rights of
the parties hereto and of removing the subject matter thereof from
the field of litigation."
After providing for the transfers of property and the release of
claims, the agreement recited,
"This agreement shall be submitted to the court for its
approval, but, nevertheless, the covenants in this agreement shall
survive any decree of divorce which may be entered. It is of the
essence of this agreement that the settlement herein provided for
shall not become operative in any manner, nor shall any of the
Recitals or covenants herein become binding upon either party,
unless a decree of absolute divorce between the parties shall be
entered in the pending Nevada action. The settlement herein
Page 340 U. S. 117
shall become immediately effective and operative in the event
of, and upon the entry of, a decree of divorce between said parties
in said pending Nevada action. The parties hereto, however, shall
proceed as expeditiously as possible to carry into effect the
covenants herein, which it is provided are to be performed by
either of the parties prior to the entry of the decree as
After a hearing at which both parties were represented, the
court granted the divorce. It found that certain transfers from the
wife to the husband were "in discharge of a legal obligation which,
because of the marital relationship has been imposed" on her, and
"the agreement and trust agreements forming a part thereof, made
and entered into between plaintiff and defendant under date of
February 27th, 1943 is entitled to be approved."
The divorce decree "approved" the agreement, directed
performance of two of its paragraphs, and declared,
"Notwithstanding the approval of said agreement and the trust
agreements forming a part thereof by the Court herein, it is
ordered that said agreement and said trust agreements forming a
part thereof shall survive this decree."
"* * * *"
"It is further ordered, adjudged, and decreed that the decree
herein entered is absolute and final in all respects, and the Court
herein divests itself of all power to amend or modify the same in
the future without the consent of both of the parties hereto."
"The parties executed the provisions of the decree and the
agreement, and the Commissioner assessed the tax in question on the
amount by which the value of the property transferred by the wife
to her husband exceeded the value of the property transferred by
him to her. "
Page 340 U. S. 118
3. Such being the facts of the case, was the transfer by
Cornelia Harris "founded upon a promise or agreement"? The statute
does not say founded "solely upon a promise or agreement." The
statute does not say that the tax should not fall on "property
transferred under the terms of a judgment or decree of the court."
Nor is the phrase "founded upon agreement" a technical term having
a well known meaning either in law or in literature. The question
is whether the transfer made by the taxpayer to her husband was,
within the fair meaning of the language, "founded" upon her
agreement with her husband. Did the Nevada judge, in decreeing the
divorce, describe what actually took place here when he said that,
"date of February 27, 1943, the plaintiff and defendant entered
into an agreement and trust agreements forming a part thereof,
under the terms of which the parties settled all obligations
arising out of their marriage?"
The fact that the undertakings defined by this agreement would
come into force only on the occurrence of a condition, to-wit, the
entering of a decree of divorce, is apparently regarded as decisive
of taxability. But does this make any real difference? The terms of
that decree might be different from the terms of the agreement,
but, "nevertheless, the covenants in this agreement shall survive
any decree of divorce which may be entered." If the divorce court
had disapproved the agreement and had not decreed the transfer of
any property of the wife to her husband, it is difficult to see how
transfers which she made, solely because of the compulsion of the
agreement, would be effected by court decree, and, for that reason,
not subject to tax. The condition on which an agreement comes into
force does not supplant the agreement, any more than a deed in
escrow ceases to be a deed when it comes out of escrow. In the
cases, would the gifts have
been any the less founded upon an agreement if, as a condition to
the antenuptial arrangements in those cases,
Page 340 U. S. 119
the consent of the parents of the fiancée had been made a
condition of the marriage? Nor can excluding the transfers here
involved from the gift tax be made tenable by resting decision on
the narrower ground that, to the extent the divorce decree
"approved" the agreement or embodied its provisions so as to make
them enforceable by contempt, the transfers were not "founded upon"
the agreement within the meaning of the statute. [Footnote 2/3
] If the taxpayer had been sued by her
husband for the sums she was obligated to transfer to him, could he
not have brought the suit on the contract? [Footnote 2/4
] Even though a promise for
Page 340 U. S. 120
which inadequate consideration was given has been reduced to a
judgment, a claim based upon it has been held not deductible from
the gross estate, and thus must have been deemed to be "founded
upon a promise." Markwell's Estate v. Commissioner,
F.2d 253. If a transfer does not cease to be "founded upon a
promise" when the promise is merged into a judgment, is not a
transfer pursuant to an agreement which survives a ratifying decree
"founded upon" that agreement?
Judge Learned Hand's treatment of this matter is so hardheaded
and convincing that it would be idle to paraphrase his views.
"In some jurisdictions contracts made in anticipation of a
divorce are held to persist ex proprio vigore
divorce decree has incorporated their terms, and has added its
sanctions to those available in contract. That, for example, is the
law of New York, where the contract remains obligatory even after
the court has modified the allowances which it originally adopted,
and where the promises will be thereafter enforced by execution,
and the like. Perhaps that is also the law of Nevada, which the
parties provided should govern 'all matters affecting the
Page 340 U. S. 121
of this agreement or the rights of the parties.' Be that as it
may, in the case at bar, the Nevada decree having declared that the
agreement was 'entitled to be approved,' that included the
provision that its 'covenants' should 'survive' as well as any of
its other stipulations. Thus, the payments made under it were
'founded' as much upon the 'promise or agreement' as upon the
decree; indeed, they were 'founded' upon both; the parties chose to
submit themselves to two sanctions -- contempt under the divorce
court and execution under the contract. The payments were therefore
subject to the gift tax."
178 F.2d 861, 865.
I would affirm the judgment.
settlement did not involve release of
support rights. Nor are they involved in the case before us, for
the transfer here sought to be taxed passed to the husband from the
wife, who was under no obligation to support him. We are therefore
not concerned here with the Commissioner's view that,
"to the extent that the transfers are made in satisfaction of
support rights, the transfers are held to be for an adequate and
E.T. 19, 1946-2 Cum.Bull. 166. See
2 Paul, Federal
Estate and Gift Taxation § 16.15. But cf. Meyer's Estate v.
110 F.2d 367; Helvering v. United States
111 F.2d 576.
We therefore need not pass on the suggestion of the Government
that the estate and gift tax provisions should not, in this
instance, be read in pari materia,
interpretation of a phrase common to the two statutes is not
involved. Nor do we pass on the contention that, under both gift
and estate taxes, liability is imposed on transfers and claims
resulting from loss of marital rights, even when no promise or
agreement is involved.
The ground adopted for reversal of the court below is important
to the disposition of the case. On the broader ground apparently
employed, no gift tax is due. But, if the narrower basis be used,
it is probable that some liability should be imposed. One of the
transfers required by the agreement -- the wife's assumption of a
$47,650 indebtedness of her husband -- was not incorporated into
the divorce decree, and therefore is presumably enforceable only
under the contract. If enforceability under the decree is the
criterion, a gift tax is due to the extent this indebtedness is
reflected in the amount determined by the Commissioner to represent
the value attributable to release of marital rights.
In none of the twelve jurisdictions in which decisions in point
have been found has it been held that a suit could not be brought
on the contract in a situation like that before us. In four States,
actions may apparently be brought subsequent to divorce on prior
separation agreements which are construed to contemplate survival
even though the divorce decree directs different payments than the
agreement. See Seuss v. Schukat,
358 Ill. 27, 36, 192 N.E.
668, 672; Freeman v. Sieve,
323 Mass. 652, 84 N.E.2d 16;
Goldman v. Goldman,
282 N.Y. 296, 301, 26 N.E.2d 265, 267;
Holahan v. Holahan,
77 N.Y.S.2d 339; Mobiley v.
221 S.W.2d 565. In three States, such suits may be
brought, at least where the decree is not inconsistent with the
agreement and does not indicate an intention to terminate it.
See Heinsohn v. Chandler,
23 Del.Ch. 114, 2 A.2d 120;
Coe v. Coe, 71 A.2d
; Allen v. Allen,
196 Okl. 36, 162 P.2d 193
five others, it appears that actions on the contract will lie
except when the agreement is recited in the decree so as to be
enforceable by contempt; but in none of the cases refusing to
permit a suit on the contract did the decree or the agreement
direct survival. See Hough v. Hough, 26 Cal. 2d
, 160 P.2d 15; McWilliams v. McWilliams,
173, 132 P.2d 966; Hertz v. Hertz,
136 Minn. 188, 161 N.W.
402; Corbin v. Mathews,
129 N.J.Eq. 549, 19 A.2d 633;
Mendelson v. Mendelson,
123 Ohio.St. 11, 173 N.E. 615.
Lindey, Separation Agreements and Ante-Nuptial
Contracts, 389-395; Note, Control of Post-Divorce Level of Support
by Prior Agreement, 63 Harv.L.Rev. 337. Schacht v.
295 N.Y. 439, 68 N.E.2d 433, relied on by petitioner,
held only that a determination by the divorce court of the fairness
of a separation agreement was res judicata
in a subsequent
suit to set the agreement aside for fraud. The issue does not
appear to have been determined in Nevada, where the agreement here
involved was made and the divorce entered.