Chase v. Fitz
| Decision Date | 03 March 1882 |
| Parties | Azubah Chase v. Eustace C. Fitz, executor |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Demurrer sustained.
W Gaston & A. R. Brown, for the plaintiff.
M. F Dickinson, Jr. & H. R. Bailey, for the defendant.
This action has been argued as if it were an action of contract for breach in the performance of a marriage contract between the plaintiff and Gardner Chilson, the defendant's testator; and it has been presented to the court as if the only question to be argued was whether, as mere matter of law, an action for a breach of promise to marry survives against the executor or administrator of a deceased party, who failed to perform a promise of marriage made in his lifetime.
It is true that what may perhaps be designated as the first count in the declaration states facts which inter vivos might be construed as a promise of marriage, and a breach of such promise, and so, possibly, might the second count in the declaration. These counts together make about ten lines. They are followed by some three or more pages of printed matter, containing what are supposed to be some half-dozen more counts for the same cause of action; for each one of these counts alleges a promise on the part of the defendant's testator to marry the plaintiff, and several, if not all of them, allege the promise to have been made at the same time and to be performed at the same time. For example, the second alleges the promise to have been made on or about December 1, 1876, and that it was to be performed by consummation of the marriage the following spring; and every other count which alleges any time of the making of such promise and its performance makes the same allegation. It were puerile to undertake to say that the promises alleged in the different counts were different promises, or that there was any different cause of action intended in the first and second counts from the causes of action set out in all the other counts.
Upon examining the declaration, it is entirely clear that no valid promise of marriage by the defendant's testator is declared on. The contract, as stated in the various counts, is a verbal contract, and, taking all the language of the counts, it is entirely clear that what the plaintiff now relies upon is an agreement, upon the part of the defendant's testator, to execute an antenuptial contract. The declaration alleges that it was a part of the agreement which she seeks to enforce, that Chilson, the testator, agreed to pay her during their joint lives the sum of one thousand dollars annually and at that rate for any fraction of time, commencing at their marriage and payable semiannually, and further promised that at his death his executors or administrators should pay her if living the sum of twenty-five thousand dollars, "but such sum shall not be payable to her heirs and assigns if she shall not survive, but said sum shall be payable to her if she shall survive him;" and then further alleges that "the plaintiff in consideration thereof and of said ante-nuptial agreement released all right, title and interest, claim and demand in and to the estate of the said Chilson which she might have as his widow by way of dower, homestead, distribution or probate allowance, and she accepts the provisions of this contract in full lieu and release of all such interests and claims upon said Chilson's estate."
Without regard to the statement of the plaintiff, "that said several declarations are for one and the same cause of action," and without regard to the statement in the plaintiff's brief, that "the agreement to marry and the agreement to pay in consideration of marriage are one inseparable contract and indivisible," it is certain that the only promise relied upon by the plaintiff is the promise in what would have been the ante-nuptial contract if that contract had been executed by the parties. It of course cannot be contended, on this declaration, that such a contract was made in writing, or that an action could be sustained upon any such agreement if not in writing. It would leave but little if anything of the statute of frauds to hold that a party might be mulcted in damages for refusing to execute in writing a verbal agreement which unless in writing is invalid under the statute of frauds. We therefore have no hesitation in determining that the defendant's testator entered into no valid engagement to marry, and that the marriage, if promised, was only one of a large series of stipulations and counter-stipulations dependent upon each other, and which required a writing for their validity. Gen. Sts. c. 105, § 1, cl. 3.
Although this view of the subject disposes of the action, inasmuch as there was argued before us the naked question whether an action for breach of marriage promise survives against an executor or administrator, and as it may be contended that the first and second counts set forth such a cause of action, and that, upon a trial of the cause, there would appear to have been no other contract than the mutual promise to marry each other, we deem it advisable to decide the question which was argued to us, upon the supposition that the parties desire it decided, and suppose it to be properly before us.
It is, however, to be observed, that neither the first nor the second count alleges any special damage, whatever that phrase may be understood to mean, and the only difference between them is this: the second count alleges the time of the contract and the time when it was to be performed, while the first count alleges neither time. Upon these counts it is clear that an action against the executor cannot be maintained. The precise question has been decided in this Commonwealth in Stebbins v. Palmer, 1 Pick. 71.
Although the point was decided in that case, yet it was not decided in an action brought upon the contract to marry. In that case Julia Palmer had represented to the judge of probate that Benjamin Stebbins had died some two years before, and that no person had been appointed to administer upon the estate, and represented herself to be a creditor of the estate, and that the debt that was due to her was damages for the breach of a promise to marry, upon which she commenced an action against him in his lifetime which was pending at his death, and which had been since continued awaiting the appointment of an administrator upon the defendant's estate, and as no person had been appointed, she as a creditor petitioned the judge of probate to appoint some suitable person as administrator; and the judge of probate, sustaining this view, decreed that administration upon the estate...
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