Coe v. Hill

86 N.E. 949, 201 Mass. 15, 1909 Mass. LEXIS 663

• Court: Massachusetts Supreme Judicial Court
• Decided: January 11, 1909
• Status: Published

Opinion

Braley, J.

By the fifth clause of his will, after having given and devised to his son Ronald and to his daughter Velnah each two undivided sevenths free from any trust, Timothy E. Stuart devised and bequeathed the remaining three sevenths of the rest, and residue of his estate in trust, “to hold, manage, invest and care for in a prudent and careful manner and to collect all the income therefrom and pay all proper and legal expenses thereon and pay the net income of two thirds of said three sevenths (or two sevenths of said ‘ rest and residue ’) to my said wife Sarah for and during her life at such times, quarterly, semi-annually or yearly as my said trustees may find convenient and for her best interest and at her decease to divide the principal sum so held in trust for her equally among my' children or their heirs except that the portion that would be paid to my daughter Lena A. Coe shall be held in trust for her and her heirs in the same maimer and for the same purposes as that portion of -my estate herein specially designated and left to be held in trust for her and her heirs, and to pay the net income of one third of said three sevenths (or one seventh of said rest and residue) or such portions of the net income and principal sum as they shall in the exercise of sound discretion deem for the best interest of her "and her children to my said daughter Lena A., and at the decease of her husband Frank E. Coe or upon her permanent and legal separation from him to pay the whole principal sum and income then remaining to my said daughter Lena free from any trust. If the said Lena A. Coe should die before her said husband or before said legal separation from him, I direct my said trustees to hold the sum held in trust for her upon the same trust for her children during their minority and to pay to said children their respective shares thereof as they respectively become of age; but if the said Lena dies as aforesaid leaving no issue, I direct that the sum held in trust for her be divided equally among my remaining children and their heirs by right of representation.” By the phrase “ my daughter Lena A. Coe ” the testator referred to, and meant the petitioner. It is commonly said that marriage is a civil contract, requiring only the free consent of parties capable of contracting, but, if this means that the law no longer regards marriage in its inception as a religious rite, after the relation of husband and wife has been entered upon, each spouse assumes toward the other and toward society in general certain duties and responsibilities, which cease to be mere private regulations and are matters which deeply concern the public welfare. The contract is for life, and cannot be repudiated or terminated at the pleasure of the parties, but can only be dissolved by the State itself. It follows that, after fulfilment of the Contract, marriage is a social institution, or status, in which, because the foundations of the family and the domestic relations rest upon it, the Commonwealth has a deep interest to see that its integrity is not put in jeopardy, but maintained. Smith v. Smith, 13 Gray, 209. Peck v. Peck, 155 Mass. 479. Nolin v. Pearson, 191 Mass. 283, 286, 287. Adams v. Palmer, 51 Maine, 480. Ditson v. Ditson, 4 R. I. 87. Livingston v. Livingston, 173 N. Y. 377. Randall v. Kreiger, 23 Wall. 137. Maynard v. Hill, 125 U. S. 190. United States v. Grimley, 137 U. S. 147. Sottomayor v. DeBarros, 5 P. D. 94. In its conservation the law has steadily refused to sanction the validity of testamentary provisions founded upon conditions precedent to their enjoyment by the legatee, which are intended to bring about the separation o'f husband and wife. If the testator’s purpose was to induce a future separation or divorce of his daughter from her husband, upon the happening of which the fund with accrued income would immediately become payable to her, the condition for this reason would be void. Cowley v. Twombly, 173 Mass. 393, 397. Brown v. Peck, 1 Eden, 140. Wren v. Bradley, 2 DeG. & Sm. 49. Cartwright v. Cartwright, 3 DeG., M. & G. 982. H. v. W., 3 K. & J. 382. Wilkinson v. Wilkinson, L. R. 12 Eq. 604. Conrad v. Long, 33 Mich. 78. But, while the testator’s intention is the only test, the language he employed is to be construed in the ordinary sense, and for this purpose the condition, which is made dependent upon either one of two contingencies, is to be treated as a whole. If this is done, then, upon either the death of the husband or upon a divorce between them, whether obtained by her or by him, the fund vests in possession, but it would be a plain perversion of words to say, that the testator meant or intended that, in order to accelerate the enjoyment of the property, the petitioner should procure either her husband’s death or a divorce. The testator refers only to a separation, which, under the laws of his domicil, whose provisions he may be presumed to have had in mind, could be grounded by her only on the husband’s misconduct. He speaks of its permanency in the sense that the marriage status was to be ended, not by a breach of marital obligations, but by an irrevocable decree for an absolute divorce. It is as if, in making provision for her future welfare, he had said, “If my daughter becomes a widow,” or “ If because of her husband’s marital misconduct she lawfully obtains an absolute divorce, then the trust as to her is to be terminated, and she is to have her share of the property.” The voluntary exercise by a legatee of a right which the law confers is not against public policy, and does not avoid a testamentary gift, the language of which may show the testator had in mind that such a contingency might arise. Cowley v. Twombly, 173 Mass. 393. Thayer v. Spear, 58 Vt. 327. Born v. Horstmann, 80 Cal. 452, 457, 459. But while the trust is valid, the petitioner asks that it may be terminated upon the ground that she has been permanently separated from her husband. The deed of separation between the spouses was a lawful and binding agreement under the law of their foreign domicil, by which it must be construed and its legal effect ascertained. Polson v. Stewart, 167 Mass. 211. Electric Welding Co. v. Prince, 200 Mass. 386. It can there be upheld and enforced, even if no circumstances existed when the deed was executed which would support either a decree for a dissolution of the marriage, or for a judicial separation. Hart v. Hart, 18 Ch. D. 670. But the existence and effect of foreign laws is a question of fact, and, under the finding of the single justice, neither the terms of the agreement nor the provisions of the domiciliary law as to the marital rights of parties thus separated severed the bonds of matrimony. If they chose, it was within their power to resume at any time conjugal relations, and upon reconciliation the deed would become a mere nullity. Bateman v. Ross, 1 Dow. 235. A voluntary separation not being within the terms of the will, the decree of the Probate Court must be affirmed.

Decree accordingly.