that, with such abilities on the part of the husband, it would not be fair to the wife to compel her to sell all that she had in order to raise money wherewith to live and prosecute her action."

In our opinion, the supreme court in this case satisfactorily answers defendant's contention that the lower court should not have made the order, for the reason that the plaintiff had ample means of her own for her support and costs.

[3] Third: The third ground upon which defendant appeals from the order is that the plaintiff deserted and abandoned him, and was at the date of the order living separate and apart from him. As stated before, defendant in his cross-complaint set up desertion as one of his grounds of divorce. The lower court found against him, and he has appealed from this judgment. The question as to whether the plaintiff deserted the defendant or not is the one question involved in that appeal. To hold in this procceding that the plaintiff is not entitled to alimony and attorneys' fees because she deserted the defendant would be deciding that appeal in this proceeding. As the record stood at the time the order for alimony was made, the finding of the court was that the plaintiff had not deserted the defendant. Until that finding is set aside by the proper tribunal, it stands, and controls not only the parties to said action, but this court as well.

[4] Fourth: Lastly, defendant contends that the antenuptial contract, entered into between the parties, precluded the court from making any order for alimony, costs, and attorneys' fees. We will not discuss the fairness or unfairness of this agreement, nor will we pass upon the question as to whether the plaintiff, prior to executing the same, sought and received proper and sufficient independent legal advice as to her rights thereunder. In view, however, of what has been said in the briefs of counsel, we are led to observe that if there is any defect in the contract, it is the fault of defendant, and not that of the plaintiff. If the contract is cold and harsh, mercenary in spirit and lacking in any terms of love and affection, which we would expect to find in an agreement of this nature, these shortcomings must not be attributed to the plaintiff. While she had undoubtedly been consulted in a general way as to its terms,

the real preparation of the document was intrusted to the defendant. He, or someone in his behalf, dictated its phraseology and selected its words from beginning to end. If any criticism, therefore, is to be indulged in, relative to its contents, such criticism comes with ill grace from the lips of the defendant.

The contract, in its preamble, recites that the parties thereto contemplate marriage; that they each have separate property, which they consider for the best interests of each should be defined and protected by an agreement prior to marriage, and that the consummation of the contemplated marriage is declared to be sufficient and valuable consideration for all the conditions and requirements of the agreement. The first paragraph of the contract refers wholly to the property of the parties, then follow the second, third and fifth paragraphs (there is no fourth) in these words:

"Second: It is further agreed by the said party of the first part hereto that in case of the separation or divorce of the parties hereto or the death of the party of the second part that in either or any of said events that the said party of the first part shall and will accept the sum of Five Thousand ($5,000) Dollars in full payment and settlement for any, each and every claim of any nature or character whatsoever against the said party of the second part, his property or estate, and it is further agreed that said sum of $5,000 shall include in that event each and all claims for attorney's fees, separate maintenance, allowance, alimony, property claims, or any claim of any kind or character that the said party of the first part may or shall have by reason of being or having become the wife of the said party of the second part, including each and all rights of inheritance, homestead rights and widow's allowance, and upon payment or tender of said sum of $5,000 by the said party of the second part, his agents, heirs or legal representatives, within a reasonable time after said event or either of said events shall occur, said first party hereby agrees to and does waive each and all claims of any nature or character whatsoever against the said party of the second part or his property or estate except what he may provide for said party of the first part in his last will and testament, it being however understood and agreed that this does not and shall not con

stitute an agreement to leave any sum whatsoever to the said party of the first part by last will and testament.

"Third: It is further mutually agreed and understood between the parties hereto that should either party bring suit for divorce against the other at any time that they or either of them shall not ask for or accept from the court any sum or allowance or property of any kind or character not provided for in this agreement, it being mutually agreed and understood that this constitutes a settlement of each and all such claims between the parties hereto and a complete and full settlement of property rights between them; except that this agreement shall in no way affect the custody of children, issue of said marriage, and this to be valid and hinding no matter what charge might be alleged or proven in any such divorce action. And should the court for any reason whatsoever grant to the said party of the first part a larger sum as alimony, costs, or attorney's fees in excess of said sum of $5,000, then and in that event the said party of the first part hereby agrees to waive in a legal and satisfactory manner each and all claims to anything in excess of the said $5,000 above mentioned.

"Fifth: It is further agreed and understood between the parties hereto that up to the present time there does not exist between the parties any mutual agreement or promise of marriage but although the same has been in contemplation the said contract of marriage has not yet been entered into but upon the signing of this agreement the said contemplated agreement and promise of marriage shall become binding each upon the other and upon the signing of these presents each of the parties hereto agrees to consummate said vows of marriage in a legal and usual manner."

From the portions of the contract above set out, it will be seen that the limit plaintiff could receive from the defendant in case of separation or divorce would be the sum of $5,000, which sum would include alimony, costs, and attorneys' fees. At the hearing of the motion, defendant contended that while they were living together as husband and wife he had advanced plaintiff money, which she had used on her own separate property, and which, together with such sums as he had paid her since the separation, far exceeded the sum of $5,000, and, therefore, the court had no authority to compel him to make any further payments. We do not under

stand that it is seriously contended by the plaintiff that she has not received at least $5,000 from the defendant at the times and in the manner in which he claims that he advanced the same to her. The position of plaintiff is that, admitting that she has received from the defendant the sum of $5,000, as claimed by him, still the order is valid for the reason that the antenuptial contract, wherein it attempts to fix the amount which plaintiff can recover in any future divorce action as alimony, costs, and attorneys' fees, is against public policy, and void.

"It is not the policy of the law to encourage divorce." (Morgan v. Morgan, 190 Cal. 522 [213 Pac. 993].) "Any agreement for divorce, or any collateral bargaining promotive of it, is considered unlawful and void. Under our code either husband or wife may enter into any agreement or transaction with the other, or with any other person, respecting property, which either might if unmarried. Notwithstanding this freedom to enter into any contract between themselves or with other persons, it has been held in this state repeatedly that an agreement between husband or wife founded upon a consideration to withdraw or abandon a defense to a suit for divorce, or do anything to facilitate procuring the same, is illegal and void. (Newman v. Freitas, 129 Cal. 283 [50 L. R. A. 548, 61 Pac. 907].) Quoting further from this case (129 Cal., on page 290 [50 L. R. A. 548, 61 Pac. 909]), the court says: "The courts of other states have expressed themselves similarly in reference to such contracts."

In the case of McCahan v. McCahan, 47 Cal. App. 173 [190 Pac. 458], the parties had entered into an agreement containing the following provision:

"6. In the event that any action for divorce shall ever be instituted between the parties hereto, then and in such event it is agreed that there shall be awarded to the party of the second part the sum of One Hundred ($100) Dollars in full settlement of all her claims for counsel fees and costs herein; and it is further agreed that said sum shall be awarded in one action only."

After the execution of said agreement the husband instituted an action of divorce against the wife who was the party of the second part in said agreement. Judgment was entered in favor of the husband, and the wife appealed

from the judgment and moved the court for costs and attorney's fees on appeal. The husband, resisting the motion, filed an affidavit in which he alleged the exccution of the above-mentioned agreement and that he had fully complied therewith by paying to his wife the sum of $100. The court overruled his objection and made an allowance of $343 as costs and counsel fees on appeal. The appellate court sustained the order and held the contract void as against public policy. It not only held the contract void, but it sustained the order of the lower court upon the broad ground that the matter of costs and counsel fees in divorce actions had by legislative enactment been exclusively vested in the discretion of the trial court, and that any agreement made by the parties, attempting to settle such matters, is subject to the examination and sanction of the court.

In Pereira v. Pereira, 156 Cal. 1 [134 Am. St. Rep. 107, 23 L. R. A. (N. S.) 880, 103 Pac. 488], the parties had entered into an agreement which provided that if the wife should thereafter procure a divorce against her husband, the latter would pay her the sum of $10,000 in full satisfaction of all her claims for alimony, costs, counsel fees, and her rights in the community property. The lower court declared the agreement void, and the supreme court in affirming the judgment uses the following language: "The real effect of the contract to pay the $10,000, so far as the husband is concerned, would be to provide against liability for a contemplated wrong to be subsequently inflicted by him upon his wife, and to liquidate such liability in advance of the commission of the wrong. The evidence and findings show that the defendant was then possessed of property worth about $77,000, was engaged in a very lucrative business, and was receiving an income of about $11,000 a year, which he had every reason to believe would continue. By this contract, if valid, he was left free to inflict upon his wife the most grievous marital wrongs, such as would compel her to obtain a divorce, secure in the protection of his contract that $10,000 would satisfy all her claims against him of a pecuniary nature or in relation to the community property. If he should, after its execution, be moved by evil impulse to commit anew the offenses against his wife which first gave her cause for divorce, or other acts having the same legal effect, the existence of a valid contract of this sort could