Fox v. Davis

113 Mass. 255

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1873
• Status: Published

Opinion

Endicott, J.

It is contended by the husband that the agreement of separation and the trust created thereby cannot be upheld, because against public policy. The great weight of authority sustains the validity of such contracts, where the separation has taken place, or is to take place immediately. But where the agreement is made in contemplation of future separation, the current of authority is against its validity. In this case the bill recites that the parties have lived separately since the agreement.

So far as this court has passed upon the question, it has recognized the validity of such a contract for the support of a wife during separation. In Page v. Trufant, 2 Mass. 159, it was held that a bond by a husband for the support of his wife after a voluntary separation was a valid contract, and that the consideration was legal and meritorious. In Hollenbeck v. Pixley, 3 Gray, 521, a husband and wife entered into articles of separation, and all the separate property of the wife was conveyed to a trustee for her benefit, and it was held that she was not entitled after his decease to an allowance out of his personal estate. In Albee v. Wyman, 10 Gray, 222, the question was raised. The learned judge who delivered the opinion states the law, as held in England and in numerous decisions in this country, to be well settled in favor of the validity of such contracts, but considers the rule to be obnoxious to grave objections. It was unnecessary to consider the question at large in that case, because, assuming the validity of the contract, it was held to have been discharged. Similar suggestions, in regard to the policy of allowing such contracts, were made in Walker v. Walker, 9 Wall. 743; but the court sustained their validity, citing the numerous authorities in England and this country. Hunt v. Hunt, 4 De G., F & J. 221. In Holbrook v. Comstock, 16 Gray, 109, the decision is based on the assumed validity of such a contract.

We are of opinion, therefore, that when, in contemplation of an immediate separation, actually carried out, a husband, by indenture, places money in the hands of a trustee, the income of which is to be paid to the wife during life, the indenture is binding on him, and will not be set aside as against public policy.

It is not necessary to determine the construction and legal effect to be given to the provision of the indenture that the principal sum shall be paid to the wife, if the parties are legally divorced. A divorce nisi under St. 1870, c. 404, does not sever the bonds of matrimony, and she is still a married woman. Edgerly v. Edgerly, 112 Mass. 53.

The trustee is therefore to hold the fund, and pay over the income thereof to the wife as provided in the indenture.

Decree accordingly.