Cleary v. La France, No. 905.

Docket NºNo. 905.
Citation199 A. 242
Case DateMay 03, 1938
CourtUnited States State Supreme Court of Vermont
199 A. 242

CLEARY
v.
LA FRANCE.

No. 905.

Supreme Court of Vermont. Orleans.

May 3, 1938.


199 A. 243

Exceptions from Orleans County Court; Alfred L. Sherman, Judge.

Action by Walter H. Cleary, as trustee of Alice M. La France, against Ernest S. La France upon a written separation agreement between husband and wife, wherein plaintiff was trustee. From an order overruling a demurrer to the declaration, defendant brings exceptions.

Affirmed and remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Sterry R. Waterman, of St. Johnsbury, for plaintiff. Raymond L. Miles, of Newport, for defendant.

MOULTON, Justice.

This is an action in contract. The declaration alleges that on June 4, 1932, the defendant Ernest La France and Alice M. La France, his wife, were, and had been for some time then past, living separate and apart from each other; that, desiring to come to an amicable settlement, they executed a written contract with Walter H. Cleary, the plaintiff, as trustee, the material parts of which were as follows: In consideration that he was released from all obligation and liability for the future support of his wife the defendant transferred to the plaintiff, as trustee, certain household goods and furnishings, agreed to discharge certain outstanding indebtedness, and to pay each week to the plaintiff, as trustee, a certain sum of money, for the care and support of his wife; in consideration of these weekly payments to the plaintiff, to be used for her support, and the payment of the specified debts, Alice agreed with the plaintiff, as trustee, that she would undertake and assume her own support, without further expense to, or liability on the part of, the defendant; in consideration of the performance of the agreement by the defendant and his wife, the plaintiff agreed to accept the trust, to receive the money and to disburse it for the support of Alice; and "the further consideration for this contract is the agreement of the other parties to the contract and the performance of the contract by each of them." It is alleged that Alice M. La France has performed her part of the contract, and the plaintiff, as trustee, has been willing to perform his part, and has done so except in so far as he has been prevented by the failure of the defendant to carry out his promises and undertakings, but the latter has failed to make all the stipulated weekly payments, and is now in arrears, to recover which this action is brought.

The defendant demurred upon the grounds that the contract was void as being without consideration, and against public

199 A. 244

policy, in that it contemplated a continued voluntary separation between husband and wife, and the prevention of a reconciliation between them, and was an agreement by mutual consent for a separation from bed and board. The demurrer was overruled in the trial court, and the cause is here on defendant's exceptions.

However askance the law may once have looked upon agreements contemplating the separation of husband and wife, they are no longer regarded with such disfavor as to condemn them under all circumstances. It is now well settled in England, and in the great majority of jurisdictions in this country, that it is not against public policy to allow the spouses, where the separation has already taken place, or is immediately to take place, fairly to define by contract their mutual rights and obligations with respect to property and to the wife's support whether such agreement is made directly between the spouses or through the intervention of a trustee. Peters v. Peters, 20 Del.Ch. 28, 169 A. 298, 301, 302; Grime v. Borden, 166 Mass. 198, 199, 200, 44 N.E. 216; French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A.L.R. 530, 532; Clark v. Fosdick, 118 N. Y. 7, 22 N.E. 1111, 1112, 1113, 6 L.R.A. 132, 16 Am.St.Rep. 733; Winter v. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L.R.A.,N.S., 710, 713, 714; VanKoten v. VanKoten, 323 Ill. 323, 154 N.E. 146, 50 A.L.R. 347, 350; Aspinwall v. Aspinwall, 49 N.J.Eq. 302, 24 A. 926, 927; Clark v. Clark, 176 A. 81, 83, 13 N.J.Misc. 49; Walker v. Beal, 9 Wall. 743, 750, 19 L.Ed. 814, 817; Carey v. Mackey, 82 Me. 516, 20 A. 84, 85, 9 L.R.A. 113, 17 Am.St.Rep. 500; cases cited annotations 1 L.R.A. 512; 12 L.R.A.,N.S., 848; 50 A. L.R. 352; 3 Williston on Contracts, p. 3042, par. 1742; Restatement of Contracts, par. 584; Peaslee, "Separation Agreements under the English Law," 15 Harvard Law Review, 638. As Sir George Jessell, Master of the Rolls, said in Besant v. Wood, L. R. 12 Ch.Div. 605, 620: "For a great number of years both...

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7 practice notes
  • Vill. of Waterbury v. Melendy, No. 1646.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 3, 1938
    ...equal protection of the laws to the defendant resulted because there had been such a delegation of legislative authority to the trustees 199 A. 242 as is expressly or by necessary implication prohibited by the Constitution of In Sabre et al. v. Rutland R. R. Co. et al., 86 Vt. 347, 85 A. 69......
  • Athens Sch. Dist. v. Vt. State Bd. of Educ., Nos. 19-185 & 19-241
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 10, 2020
    ...to the Public Service Commission to determine how the benefits and assessments from the act were to be distributed. Id. at 453, 199 A. at 242.7 In reality, this may actually be a proportional-contribution-clause claim, insofar as it turns on claimed disparate tax burdens, rather than a comm......
  • Athens Sch. Dist. v. Vt. State Bd. of Educ., No. 2019-185
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 10, 2020
    ...to the Public Service Commission to determine how the benefits and assessments from the act were to be distributed. Id. at 453, 199 A. at 242. 7. In reality, this may actually be a proportional-contribution-clause claim, insofar as it turns on claimed disparate tax burdens, rather than a co......
  • Pouech v. Pouech, No. 2004-423.
    • United States
    • May 12, 2006
    ...the agreement was the result of collusion, fraud, or duress. Id. at 217, 303 A.2d at 809 (citing Cleary v. LaFrance, 109 Vt. 422, 199 A. 242 (1938)). The Court also suggested that it was irrelevant that the parties' stipulation had not yet been incorporated into an order. Id. at 217, 303 A.......
  • Request a trial to view additional results
7 cases
  • Vill. of Waterbury v. Melendy, No. 1646.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 3, 1938
    ...equal protection of the laws to the defendant resulted because there had been such a delegation of legislative authority to the trustees 199 A. 242 as is expressly or by necessary implication prohibited by the Constitution of In Sabre et al. v. Rutland R. R. Co. et al., 86 Vt. 347, 85 A. 69......
  • Athens Sch. Dist. v. Vt. State Bd. of Educ., Nos. 19-185 & 19-241
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 10, 2020
    ...to the Public Service Commission to determine how the benefits and assessments from the act were to be distributed. Id. at 453, 199 A. at 242.7 In reality, this may actually be a proportional-contribution-clause claim, insofar as it turns on claimed disparate tax burdens, rather than a comm......
  • Athens Sch. Dist. v. Vt. State Bd. of Educ., No. 2019-185
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 10, 2020
    ...to the Public Service Commission to determine how the benefits and assessments from the act were to be distributed. Id. at 453, 199 A. at 242. 7. In reality, this may actually be a proportional-contribution-clause claim, insofar as it turns on claimed disparate tax burdens, rather than a co......
  • Pouech v. Pouech, No. 2004-423.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2006
    ...the agreement was the result of collusion, fraud, or duress. Id. at 217, 303 A.2d at 809 (citing Cleary v. LaFrance, 109 Vt. 422, 199 A. 242 (1938)). The Court also suggested that it was irrelevant that the parties' stipulation had not yet been incorporated into an order. Id. at 217, 303 A.......
  • Request a trial to view additional results

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