Deshon v. Wood

• Citation: 148 Mass. 132,19 N.E. 1
• Parties: DESHON v. WOOD et al.
• Decision Date: 19 December 1888
• Court: United States State Supreme Judicial Court of Massachusetts

148 Mass. 132

19 N.E. 1

DESHON v. WOOD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

December 19, 1888

COUNSEL

H.D. Hadlock and L.G. Blair, for respondents.

F.A Dearborn, for complainant.

OPINION

W. ALLEN, J.

The bill is brought by the assignee in insolvency of John F Wood, to recover possession of 180 bonds of the Exeter Wood-Pulp Company, which belonged to Wood, and were delivered by him to the defendant Alice C. Wood; and the only question is whether the transfer to her was valid against the plaintiff.

The evidence upon which the plaintiff relies, tends to prove that about the 1st of June, 1884, an engagement of marriage was entered into between the defendant John F. Wood and the defendant Alice C. Wood, then Mrs Soule, and at the same time he promised to give her the bonds as a marriage settlement; that he delivered the bonds to her about the middle of the next October, and that they were married on the 1st day of the next November. Mrs. Wood testified: "It was in June that Wood proposed marriage and I accepted him. He said he would like to make some marriage settlement on me; *** that he had some property at Snow's Falls, in Maine, and if I became his wife I should have this property as a settlement. About the middle of October, I set a day for our marriage, and at that time Mr Wood gave me the bonds, and said those were the bonds he promised me; to put them away, and take care of them, and at the consummation of our marriage they would become my absolute property." Mr. Wood testified that he delivered the bonds to Mrs. Soule about the middle of October, and that he had previously talked with her, and told her that when she became his wife she should have them. In answer to a question as to what statement he made when he delivered the bonds to her, in regard to their being hers, he answered: "The understanding that I had was that they were to be hers when she was married, as a settlement." The bonds, thus delivered to Mrs. Soule, remained in her possession until after the marriage. The evidence shows an executory contract to transfer the bonds upon marriage, and in consideration of marriage, within the statute of frauds, which provides that no action shall be brought upon an agreement made upon consideration of marriage, unless in writing. As the promise could not be enforced, the performance of it by the husband, after marriage, would be voluntary, and void against creditors. Randall v. Morgan, 12 Ves. 67; Warden v. Jones, 2 De Gex & J. 76; Caton v. Caton, L.R. 1 Ch. 137, L.R. 2 H.L. 127; Reade v. Livingston, 3 Johns.Ch. 481; Lloyd v. Fulton, 91 U.S. 479. See, also, Trowell v. Shenton, 8 Ch.Div. 318.

The delivery of the bonds to Mrs. Soule before the marriage was under the contract, but not in performance of it. Its purpose was not to change the agreement, but to secure the performance of it upon the marriage. The delivery did not pass the property in the bonds. That was not to pass until the marriage, and then only by force of the agreement; and the utmost effect that can be given to the delivery of the bonds to Mrs. Soule, and her retention of them after the marriage, is to treat it as performance of the agreement by the husband after marriage, and it can have no greater effect than a post-nuptial settlement.

This view is confirmed by the provisions of Pub.St. c. 147, §§ 26, 27, that, "at any time before a marriage, the parties may enter into a contract in writing, agreeing and providing that, after the marriage is solemnized, the whole or any designated part of the real or personal estate, or any right of action of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract." The statute requires that the contract shall be recorded, and provides that, if not recorded as required, it shall be void, except between the parties, their heirs and personal representatives. The agreement in question was that, after the marriage, a designated part of the personal estate of the husband should become the property of the wife; and if it had been in writing, and with the same delivery of the bonds to Mrs. Soule as is testified to by the parties, it would have been void against the plaintiff. Butman v. Porter, 100 Mass. 337; Ingham v. White, 4 Allen, 412.

The statute is an enabling statute. At common law, antenuptial agreements, to take effect upon marriage, or to be performed during coverture, were extinguished by the marriage. As first enacted in St.1845, c. 208, §§ 1, 2, the statute authorized an antenuptial contract settling property of the wife upon her as her sole and separate property. When re-enacted, in 1860, in Gen.St. c. 108, §§ 27, 28, it was extended to include property of either party, as in the Public Statutes. Until St.1867, c. 248, the contract was made wholly void, unless recorded. The statute was intended to give legal validity to antenuptial contracts, and it excluded verbal contracts. Apart from this statute, courts of equity recognize antenuptial contracts, and enforce them between husband and wife, but there is no authority or principle upon which it can be held that equity will enforce an unrecorded written contract which the statute declares void if not recorded, or a verbal contract which is made valid by the statute only if in writing and recorded.

In Miller v. Goodwin, 8 Gray, 542, it was said that "a marriage between parties who have previously made contracts with each other, which are to be performed presently, or during the marriage, releases or extinguishes such contracts. *** Such contracts, however, when made in contemplation of marriage, and respecting the property of either of the parties, though released or extinguished at law, are held good in equity, and will be enforced by a court of chancery against the heirs of the party in default." The agreement in that case was by the intended husband, to convey land to the wife in consideration of marriage. The husband made a deed to the wife during coverture. Specific performance of the contract was decreed against his heirs. The contract was under seal, and made in 1852, but was not within St.1845, c. 208, as that does not include contracts relating to the property of the husband.

Sullings v. Richmond, 5 Allen, 187, and Sullings v. Sullings, 9 Allen, 235, related to an antenuptial contract made prior to St.1845, c. 208, and it was held that such a contract, by which a woman agreed to relinquish her distributive share of her husband's estate, though of no effect in the probate court, could be enforced in equity. Such a contract, made in 1858, was enforced in equity against the wife in Tarbell v. Tarbell, 10 Allen, 278.

Blackinton v. Blackinton, 110 Mass. 461, related to a contract made in 1858, to be performed after the death of the husband, and decided that it could not bar the wife from her distributive share in the probate court. No one of the cases just cited is within the statute of 1845, and in none of them is that statute mentioned.

In Lawrence v. Bartlett, 2 Allen, 36, a bill in equity by the surviving husband to enforce an antenuptial agreement under St.1845, c. 208, as to the property of the wife, was sustained. Ingham v. White, ubi supra, was an action after the death of the wife, upon a promissory note given by the defendant to his wife, payable to bearer, and transferred by the wife to the plaintiff. There was an antenuptial contract between the defendant and his wife, which it was claimed affected the validity of the note. The court held that the contract was void, because not recorded as required by St.1845, c. 208.

Butman v. Porter, 100 Mass. 337, was upon an antenuptial agreement made in 1858, by which the woman was to hold all her estate to her sole and separate use, and, in case she survived her husband, was to receive in lieu of dower and all her rights in his estate certain specified things, for which the husband, who died before her, made provision in his will. A bill in equity was brought to restrain the widow from prosecuting a claim for a distributive share in her husband's estate. The only question reserved was whether the agreement was void because not recorded in accordance with St.1845, c. 208. It was held that so much of the contract as related to the property of the wife was void, because not recorded, but that the particular agreement sought to be enforced related to the property of the husband, and was not within the statute, and not required to be recorded. It was held, however, that the different parts of the agreement were so connected that the invalidity of the one part was sufficient reason for refusing to enforce the other.

Jenkins v. Holt, 109 Mass. 261, was a bill in equity to enforce an antenuptial contract made in 1861, after Gen.St. c. 108, §§ 27, 28, which included contracts relating to the property of the husband as well as of the wife, took effect. By the agreement, in consideration of covenants of the intended husband, securing a sum of money to the wife after his death, and releasing all claim to any share in her estate, she covenanted to accept the same in lieu of dower and any distributive share in his estate. The court say: "The defendant claims, however, that this contract became void by the neglect to record it as required by...