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dered under

belief

well have thought that that was the since no compensation was contemcorrect legal phraseology for an ab- plated by the woman or by the parsolute divorce. She testified that at ties, the law can imply no agreethe time she married Mr. Fox she ment to pay. Robbins v. Potter, 11 did not know there were different Allen, 588; Cooper v. Cooper, 147 kinds of divorce judgments; that Mass. 370, 9 Am. St. Rep. 721, 17 she first learned that fact after his N. E. 892; Ogden v. McHugh, 167 death. In Thomas v. Thomas, 88 Mass. 279, 57 Am. St. Rep. 456, 45 Wis. 88, 59 N. W. 504, it was held N. E. 731. Other courts hold that that a woman was not chargeable she can recover on an implied conwith knowledge that a decree of di- tract when she in good faith believes vorce obtained without the requisite herself to be his wife. Higgins v. period of residence in the state was Breen, 9 Mo. 497; Sanders v. Ragan, void. Upon the evidence we think 172 N. C. 612, L.R.A.1917B, 681, the jury were warranted in holding 90 S. E. 777; Emmerson v. Botkin, that she did not know the legal ef- supra; Keener, Quasi Contr. 682. fect of the divorce from bed and The latter holdings are based on the board, and she was not, under the ground that, since his estate has circumstances, as a matter of law, been enriched at her expense, equity chargeable with knowledge there- demands that she shall be made of.

whole. The doctrine of assumpsit The claim that plaintiff was in- is applied. It is inferred from the formed that she lived in adultery nature of the transaction, and the with Mr. Fox rests upon conflicting supposed husband is held to have astestimony, and we cannot disturb sumed to pay, because in point of the jury's conclusion as to where the law and equity it is just that he truth lies.

should pay.

We The question

question presents itself think the latter doc- services renwhether or not the plaintiff, under trine is the more

mistaken

of marriage. the verdict rendered, is entitled to just and logical, and recover for services and rent of adopt it in this case. Here it is house.

found that the supposed husband, by Courts are practically unanimous express fraudulent representations, in holding that, when a woman vol- induced plaintiff to enter into the untarily and knowingly lives in il- illicit relation. It is, therefore, just licit relations with a man, she can- and equitable that his estate should

not recover on an reimburse her for the actual monWork and labor implied contract for ey value she has added thereto. -services by woman living services rendered Whether the court would so hold in in illicit rela

him during the pe- a case where both parties in good

riod of such rela- faith, but mistakenly, entered into tionship. Emmerson v. Botkin, 26 a marriage, need not now be decidOkla. 218, 29 L.R.A.(N.S.) 787, 138 ed. Am. St. Rep. 953, 109 Pac. 531.

There can be no question but that Some courts hold that she can re- an action based on the implied promcover on an express contract, if it ise to pay for services and rent surdoes not form a part of the agree

vives, and that the Statutes of Limi. ment for illicit relations. Ibid. On tation do not bar the claim for the the question here presented, as to last six years. That is all the court whether a woman who in good faith

allowed. believes she is married to a man

Judgment affirmed. when she is not, owing to his fraud Eschweiler, J., dissenting: or to a mistake of fact, can recover The lengthy claim filed by refor services rendered him during spondent in the county court and the supposed marriage, the courts certified to the circuit court upon do not agree. Massachusetts holds her demand for a jury clearly and that she cannot, on the ground that, emphatically stated a cause of ac

tions with man.

(178 Wis. 369, 190 N. W. 90.) tion for a tort. It was, in substance, recovers herein, because, and only that during the two months prior to because, of the contract of NovemNovember 21, 1914, the plaintiff, a ber, 1914; otherwise, the relationbusiness woman then about fifty- ship would be such as to defeat any two years of age, divorced from her possible right to recover. She could first husband in 1900, was wooed not base any right to recover for and won by V. H. Fox, now de- services during the latter years, exceased, by means of false represen- cept upon reliance on the supposedtations that his divorce from bed ly legal contract of 1914, and suband board in 1913 was valid, and no sequent cohabitation in continued impediment to the marriage con- reliance thereupon. Her possible tract of November, 1914. It is also good faith in the matter could not. alleged that Fox, fraudulently and under the law, alter the situation in maliciously intending to damage and which the parties were placed, and wrong her, to humiliate and dis- no length of time of subsequent cograce her, to obtain her aid and habitation could change the status services and to enrich his estate, of the parties from the meretricious maliciously and fraudulently com- one which this was and continued to menced to pay her attentions and to be. If a prosecution for adultery win her affections; that she relied had been instituted, plaintiff's misupon such representations, believed take, if any, as to the law, or lack of them, and that he loved her; that intention to commit such an offense, to carry out his wicked and fraud- would, it would seem under the auulent scheme he induced her to en- thorities, have been no defense. ter into the contract of November, State y. Goodenow, 65 Me. 30, 1 Am. 1914. She also alleged subsequent Crim. Rep. 42; Com. v. Elwell, 2 cohabitation, and her belief in there Met. 190, 35 Am. Dec. 398 (cited being a legal relationship of hus- with approval in Com. v. Sacks, 214 band and wife; that the falsity of Mass. 72, 74, 43 L.R.A.(N.S.) 1, 100 the representations was not ascer- N. E. 1019, Ann. Cas. 1914B, 1076); tained until after Fox's death.

State v. Whitcomb, 52 Iowa, 85, 87, That, on account of her belief in 35 Am. Rep. 258, 2 N. W. 970; Geisand reliance upon such false and selman v. Geisselman, 134 Md. 453, fraudulent representations made 107 Atl. 185, 188; 2 C. J. p. 16; 1 R. prior to the contract, she turned C. L. p. 644. over her earnings to him, gave him Assuming the findings of the jury a home, did his laundry, nursed and to be correct, a gross fraud was percared for him, and furnished him petrated upon her in 1914, from board. That, on account and as a which the entire subsequent relaresult of such false and fraudulent tionship of the parties must necesrepresentations, the resulting con- sarily be traced. To the cause of tract, and subsequent cohabitation, action so founded the Statute of she lived, from the date of such con- Limitations was properly pleaded, tract to his death, in a false and de- and under the undisputed facts the graded position, has suffered mental period under which she could obtain and physical pain, has been deprived the remedy for such fraud in 1914 of the benefits springing from a le- had expired prior to the death of the gal marriage, defeated of her dower decedent. For such a cause of acrights, and that decedent and his es- tion it is entirely immaterial that tate were wrongfully enriched at she may not have discovered it unplaintiff's expense and to her dam- til after the statutes had run. age. Not only was a tort action so I think the

the situation comes plainly stated, but the special ver- squarely within repeated decisions dict submitted the appropriate ques- of this court, particularly such as tions for just such a tort action. Stahl v. Broeckert, 170 Wis. 627,

She necessarily and concededly 176 N. W. 66, where the Statute of rendered the services for which she Limitations defeated the rights of an aged widow, who was fraudulent Mass. 321, 58 N. E. 1023, where ly induced to sign a certain note and services were rendered by a child to mortgage; Darling v. Nelson, 171 one falsely representing that he had Wis. 337, 176 N. W. 847, where sis- legally adopted such child. ters were alleged to have been I am further convinced from the fraudulently induced by their broth- record in this case that the plaintiff, ers to execute a conveyance of cer- having possession of a copy of the tain interest in real estate; Sander decree of divorce between decedent v. Newman, 174 Wis. 321, 181 N. W. and his first wife, with ample op822, where the complaint was be- portunity of ascertaining its nature, cause of alleged fraud in collecting having been divorced herself, of and appropriating secret profits by business experience, of mature age, one set of associates in a real estate should be held bound by the notice transaction; and in many cases cit- of its nature appearing on its face, ed in those opinions.

or so easily ascertainable, and that Cooper v. Cooper, 147 Mass. 370, the finding of the jury in that re9 Am. St. Rep. 721, 17 N. E. 892, is gard should have been set aside. a case almost identical in facts with I am authorized to state that Mr. the one here, and relief was denied, Justice Rosenberry concurs in the as well as in Graham v. Stanton, 177 foregoing dissenting opinion.

ANNOTATION.

Right of woman who lives with man in the mistaken belief that they are law

fully married to recover for services.

There is, as stated in the reported to him in his business. See Higgins case (Re Fox, ante, 420), a division v. Breen (1845) 9 Mo. 497. of opinion upon this subject, but a She may also recover for moneys of majority of the cases and the modern hers received by him, or lent by her trend of the decisions seem to be in to him. See Fox v. Dawson (La.) accordance with the rule in the re- and Sanders v. Ragan (N. C.), supra. ported case, that a woman who, in She may recover, also, the rental good faith, lives with a man under the value of her house in which he lived mistaken belief, caused by his fraud, with her (see Re Fox (reported herethat they are lawfully married, may with) ante, 420), and for the use by recover, as upon implied contract, the him of her furniture and the hire of value of the services rendered him. her negroes (see Fox v. Dawson (La.)

It is so held in Fox V. Dawson supra). (1820) 8 Mart. (La.) 94, Higgins v. As to the reason for her right to Breen (1845) Mo. 497, and Sanders recover, the court, in Fox v. Dawson v. Ragan (1916) 172 N. C. 612, L.R.A. (La.) supra, said that the marriage 1917B, 681, 90 S. E. 777. In all of contract, upon which she surrendered these cases, as in the reported case her person, property, and affairs, be(RE Fox), the recovery

had ing illegal and void, she had a right against the husband's estate, and in to be indemnified against the consethe Higgins Case alone was the ques- quences of his deceit. And in RE Fox tion raised as to whether her right of (reported herewith) it was stated, to action survived against his personal the same effect, that as the supposed representatives. In the reported case husband, by express fraudulent reprethe court said that there could be no sentations, induced her to enter into question but that such right of action, the illicit relation, it is just and equibased upon the implied promise to pay table that his estate should reimburse for the services, survived.

her for the actual money value she has A woman so living with a man may added thereto. recover not only for her services as a

It appears, however, in Sanders v. housewife, but also for aid rendered Ragan (N. C.) supra, that the amount

was

а

of her recovery should be reduced by an action of tort for the deceit in inthe cost to him of her maintenance, ducing her to marry deceased by false since in that case the trial court representations, or by a false promise charged that the law raised an implied citing Blossom v. Barrett (1868) 37 promise to pay her for what the jury N. Y. 434, 97 Am. Dec. 747, in which might find her services to be reason- woman in similar circumstances ably worth, over and above—that is, successfully maintained an action to in excess of—what benefits by way of recover damages from the man who food and clothing and keep and main- fraudulently induced her to marry tenance she received from him, if any him. It is further stated in the Cooper they should find; and the amount of Case, in this connection, that the inthe verdict shows that the jury fol- jury which was sustained by plaintiff lowed this instruction, and the verdict was in being led by the promise, or the was sustained by the appellate court. deceit, to give the fellowship and as

Authority contrary to the rule in sistance of a wife to one who was not RE Fox (reported herewith) ante, her husband, and that the duty which 420, is found in Cooper v. Cooper the intestate owed to her was to make (1888) 147 Mass. 370, 9 Am. St. Rep. recompense for the wrong which he 721, 17 N. E. 892, which holds that a had done to her. It was contended woman who is induced to marry a man that from this duty the law raised a by his false representations that he promise to pay her for her services as has been divorced from his former housekeeper; but the court answered wife, and learns the truth after his this contention by saying: "The oblideath, cannot recover from his admin- gation to make compensation for the istrator for her services as house- breach of contract could be enforced keeper rendered to the intestate. only in an action upon the contract. The

The holding in the Cooper Case is obligation to make recompense for the based upon the theory that there can injury done by the tort was imposed be no implied promise by the man to by law, and could be enforced only pay for services rendered by the in an action of tort; it was not a debt woman while they are living together or duty upon which the law raised a as husband and wife, and that their promise which would support an acactual relations, and the circum- tion of contract.

But the obstances under which the work is per- jection to maintaining the plaintiff's formed, negative any implication of a action lies deeper. The work and promise to pay. The court said, in labor never constituted a cause of acthis connection: “The fact that the tion in tort. The plaintiff could have plaintiff was led by mistake or deceit maintained no action of tort against into assuming the relation of a wife the intestate for withholding payment has no tendency to show that she did for the work and labor in housekeepnot act in that relation; and the fact ing, or for the false representations that she believed herself to be a wife inducing her to perform the work excludes the inference that the society without pay. The particular acts and assistance of a wife, which she which she performed as a wife were gave to her supposed husband, were for not induced by the deceit, so that each hire. It shows that her intention in would constitute a substantive cause keeping his house was to act as a wife of action, but by the position which and mistress of a family, and not as a she was deceived into assuming, and hired servant."

would be elements of damage in an In this connection it may be ob- action for that deceit. Labor in served that, in general, as stated in housekeeping was a small incident to 6 R. C. L. 588, a promise will not be a great wrong, and the intestate owed inferred, where there are facts wholly no duty, and had no right, to single inconsistent with the contract to be that out and offer payment for it implied.

alone; and the offer to do so might It is stated in the Cooper Case that well have been deemed an aggravation the plaintiff's proper remedy was by of the injury to the plaintiff.

It was likewise held in Cropsey v. 167 Mass. 276, 57 Am. St. Rep. 456, 45 Sweeney (1858) 27 Barb. (N. Y.) 310, N. E. 731; where, however, equity reupon the theory that a promise to pay fused to set aside, upon the application could not be implied under such cir- by his heirs upon discovery of the incumstances, that a woman who per- validity of the marriage, a deed of land formed household duties and other

by him in fulfilment of his antenuptial services for a man, under the mistaken

agreement to make such provision for belief that she was his lawful wife,

her, as a substitute for dower and any could not recover the value thereof

other interest in his estate, the court from his estate. In this case the husband, also, was under the mistaken

saying that it would be unjust, under belief that the marriage was legal, so

the circumstances, to take away what that the supposed wife would have no

she had received in return for acts remedy in tort for his fraud.

which were of value to him, and a And there is a dictum to the same

detriment to herself, and which only effect in a case of a mutual mistaken failed in being complete performance belief in the death of the husband of on her part, through a mistake as to a the woman at the time of the second fact which both parties had in mind marriage, in Ogden v. McHugh (1897) and equally relied upon. G. V. I.

CHARLES WILLETT et al., Appts.,

V. A. H. WILLETT, Admr., etc., of Bessie White Burgess, Deceased, et al.

Kentucky Court of Appeals February 9, 1923.

(197 Ky. 663, 247 S. W. 739.)

Trust — for support of dog — validity.

. 1. A trust for support of a dog is valid under a statute providing that all gifts for any humane purpose shall be valid.

[See note on this question beginning on page 430.] absence of trustee effect.

her death "to go to" a church for a 2. Equity never allows a trust to fund to be used for the church, works fail for want of a trustee.

a conversion of the property into [See 26 R. C. L. 1273.]

money, and is a valid gift. Will bequest to church validity. [See 6 R. C. L. 1073; 2 R. C. L. Supp.

3. A bequest to one for life, and at 275.]

APPEAL by plaintiffs from a judgment of the Circuit Court for Bourbon County, construing the will of Bessie White Burgess, deceased. Affirmed in part.

The facts are stated in the opinion of the court.

Messrs. A. D. Cole and H. W. Cole, Robinson, 105 Me. 68, 32 L.R.A. (N.S.) for appellants:

682, 134 Am. St. Rep. 537, 72 Atl. 883. The language of the will does not The law favors that construction present a case of equitable conversion. which will dispose of the entire estate.

Re Dean, L. R. 41 Ch. Div. 552, 58 Gerick v. Gerick, 158 Ky. 478, 165 L. J. Ch. N. S. 693, 60 L. T. N. S. 813; S. W. 695. 2 Alexander, Wills, p. 1646; Samuel v. Since the intention of the testatrix Samuel, 4 B. Mon. 253; Re Tatum, 61 was to devise to Hopewell Church adApp. Div. 513, 70 N. Y. Supp. 634; ditional land to make its holdings not Burnham v. White, 117 App. Div. 515, to exceed 50 acres, for the sole purpose 102 N. Y. Supp. 717; Robinson v. of erecting thereon houses of public

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