Malden Hospital v. Murdock

105 N.E. 457, 218 Mass. 73, 1914 Mass. LEXIS 1332

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1914
• Status: Published

Opinion

Sheldon, J.

The plaintiff relies upon the well settled doctrine that where a wife is living apart from her husband with his consent and without provision having been made for her support, she carries with her his credit, and he is liable for necessaries furnished to her by third persons. Sturbridge v. Franklin, 160 Mass. 149. Mayhew v. Thayer, 8 Gray, 172, 175. But besides the right of pledging his credit for her support she may by petition filed in the Probate Court obtain against him an order or decree, under which he will be obliged to pay to her for her support such sums at such intervals as that court may find to be reasonably necessary for that purpose. R. L. c. 153, § 33. McIlroy v. McIlroy, 208 Mass. 458. And she may enforce such payment, if necessary, by appropriate legal process. R. L. c. 153, § 35; c. 152, § 29. Manifestly, when she has availed herself of this remedy and has obtained a decree obliging him to pay to her such sums as it has been adjudged are the amounts for which he should be held, it no longer is true that provision has not been made for her support, and the ground for action by third persons against her husband no longer exists. This view is confirmed by the fact that the statute provides that an order for the support of the wife may be made upon the application of the husband as well as upon that of the wife; and the purpose of an application by the husband ordinarily would be to relieve himself from a multiplicity of suits by third persons for necessaries furnished to his wife and to have the total amount of his liability determined in one proceeding. Accordingly it was held under an earlier act (St. 1874, c. 205), now incorporated into R. L. c. 153, § 33, that a father was not liable for the support of his minor child after its custody had been given to its mother by a decree of the court, which had jurisdiction to determine both the question of its custody and what provision, if any, should be made for its support. Brow v. Brightman, 136 Mass. 187.

In this case it appeared that upon the wife’s petition orders had been made by the Probate Court for the payment by the defendant of a fixed weekly sum to bis wife for her support. The latest one of these orders still is in force and has been complied with by him. It follows that, although she is living apart from him by his consent, provision has been made for her support, and this action cannot be maintained. Alley v. Winn, 134 Mass. 77. Bailey v. Dillon, 186 Mass. 244. Our decision does not rest upon the stipulation filed in the Probate Court. The court took no action upon that stipulation, and it stands merely as an agreement between husband and wife. Silverman v. Silverman, 140 Mass. 560. Nor have we considered the refusal of the Chief Justice of the Municipal Court to rule that “the pendency of the petition for the allowance of this claim of the plaintiff by the Probate Court, is a good defense to the present action.” That request did not refer to the proceedings in the Probate Court which we have discussed, but to a later petition by the wife that the defendant be ordered to pay to her a sum of money which included the amount now sued for. The Probate Court has taken no action upon that petition, and its effect need not be determined.

The order dismissing the report must be

Affirmed.