Foote v. Nickerson

• Decision Date: 15 March 1901
• Citation: 70 N.H. 496,48 A. 1088
• Parties: FOOTE v. NICKERSON.
• Court: New Hampshire Supreme Court

48 A. 1088

70 N.H. 496

FOOTE

v. NICKERSON.

Supreme Court of New Hampshire. Merrimack.

March 15, 1901.

Appeal from probate court Merrimack county.

Petition by Stephen D. Nickerson against George L. Foote, as executor of the estate of Martha J. Nickerson, deceased, to require such executor to file an inventory and give bond. From a decree granting the relief prayed for, the defendant appeals. Appeal dismissed.

The defendant Stephen D. Nickerson, and the plaintiff's testatrix, Martha J. Nickerson, were married in Maine in 1891, and lived together there until April, 1892, when the testatrix informed her husband that she intended to leave him. Thereupon they agreed to separate, and he executed a writing as follows: "This is to certify that I, Stephen D. Nickerson, husband of Martha J. Nickerson, do mutually agree to separate on friendly terms, and to make no demand (neither me nor my heirs) on her, nor her property, after this date." At the same time she executed a similar writing, left him, and came to Bow, in this county, where she resided until her decease in 1897. Each party had some property. There was no legal cause for divorce or separation. He continued to reside in Maine, and in no way aided in her support. By the will the testatrix provided as follows: "I give and bequeath unto my husband, Stephen D. Nickerson, of Orrington, Maine, the sum of one dollar. I make this small bequest because of his agreement to live separate from me, and to make no claim upon my estate in any way." The defendant seasonably waived this provision, and upon his petition the executor was ordered to file an inventory and give bonds. From this decree the executor appealed, for the reasons that the defendant had no such interest in the estate as to entitle him to maintain his petition, and that he was estopped by the writing above set out to claim his distributive share in her estate.

Fred H. Gould and Charles Hamlin, for appellant.

Sargent & Niles, for appellee.

PEASLEE, J. One question presented for decision is whether the relation of husband and wife is one that the parties can dissolve or modify; whether the married status is so far within the control of the parties that its alteration is a result they can themselves effect, provided they agree upon the terms. It may fairly be said that the question is not settled by the decisions in this state. It has been touched upon incidentally, but in no case has it been directly involved. It therefore becomes necessary to examine the law on the subject elsewhere. Turning to other jurisdictions, it will be found that the question has been the subject of much litigation, and with varied results. Not only do the cases in one state conflict with those in other states, but in the same jurisdiction the views of one generation have often been held to be erroneous in later times. There is disagreement not only as to what the law Is, and what the policy on this subject should be, but also as to the history of the law, and how it was held to be in former times. In order, then, to reach a satisfactory solution of the question, it is essential to examine with some minuteness the historical aspect of the law applicable in this case.

The English cases decided before the Revolutionary War are conflicting, and many of them apparently imperfectly reported. The precise question here involved did not then come directly before the so-called "law courts." All causes concerning marriage and the marital status were tried in the ecclesiastical courts, which also had jurisdiction of the probate of wills and the administration of estates. 2 Bl. Comm. 496. While, in a narrow sense, these were not common-law courts, they administered the unwritten law of the realm upon these subjects. Although the inferior judges were appointed by the ecclesiastics, the bishops themselves were nominated by the king. 1 Bl. Comm. 280. In all causes an appeal might be taken to the king, who was represented by the court of delegates, appointed by him for that purpose. "This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster and doctors of the civil law." 3 Bl. Comm. 66. The law thus administered is a part of the common law "of England. Reg. v. Millis, 10 Clark & F. 534, 671. To ascertain the state of the English common law as to divorce, suits for nullity, and other matters directly concerning the marital relation, recourse must be had to the decisions of those courts. The doctrine of either total or partial divorce by agreement of the parties found no favor there. They were not permitted "to release themselves by any private act of their own, or for causes which the law itself has not pronounced to be sufficient and sufficiently proved." Mortimer v. Mortimer, 2 Hagg. Consist. 310, 318; 2 Rop. Husb. & Wife, 267. The rule that separation agreements are wholly void seems to have been adhered to from the earliest times until the court was abolished, in 1857, by the statute of 20 & 21 Vict. c. 85. Smith v. Smith, 2 Hagg. Ecc. Supp. 44, note; Westmeath v. Westmeath, Id. 1; Id., 4 Eng. Ecc. R. 258; Barlee v. Bailee. 1 Addams, Ecc. 301, 305; Nash v. Nash, 1 Hagg. Consist. 140. There are some very early cases wherein contracts of husbands with a third person concerning the support of their wives were enforced in chancery. In Seeling v. Crawley, 2 Vern. 386 (decided in 1700), Crawley, who had separated from his wife, made a contract with her father. Seeling, that the wife and a child should be supported at her father's house. Upon a bill brought by the father, in which the wife joined, performance of the husband's covenants was decreed. The contract did not depend upon a separation agreement. In other cases decided at about the same time the court seems to have proceeded partly upon the theory that in case of wrongdoing by the husband chancery had power to decree separate maintenance.

Oxenden t. Oxenden, 2 Vein. 493; Nicholls v. Danvers, Id. 671. These cases may have resulted from confused ideas about the respective jurisdiction of the ecclesiastical and chancery courts incident to and following after the abolition of the former during the Commonwealth. 1 Fonbl. Eq. 97, note "n." The early cases in the law and equity courts which really bear upon this question are those wherein the validity of the agreement was incidentally drawn in question. Of these one of the earliest that is reported is Lister's Case, 8 Mod. 22, decided in 1721. A wife, living separate from her husband under an agreement, sued out a writ of habeas corpus to be freed from imprisonment by him in the Mint. The court said: "An agreement between husband and wife to live separate, and that she shall have a separate maintenance, shall bind them both until they both agree to cohabit again; and, if the wife be willing to return to her husband, no court will interfere to obstruct her. But, as to the coercive power which the husband has over his wife, it is not a power to confine her; for by the law of England she is entitled to all reasonable liberty, if her behavior is not very bad." According to this report the decision was put upon two grounds—that the agreement cut off the husband's rights, and that his rights did not, in any event, entitle him to such means of coercion. Strange reports the case somewhat differently. He says: "And, all this matter appearing, and that he declared he took her into his power in order to prevail with her to part with some of her separate maintenance, the chief justice declared, and all the rest agreed, that where the wife will make an undue use of her liberty, either by squandering away the husband's estate, or going into lewd company, it is lawful for the husband, in order to preserve his honor and estate, to lay such a wife under restraint. But, where nothing of that appears, he cannot justify the depriving her of her liberty; that there was no color for what he did in this case, because there was a separation by consent." S. C, sub nom. Rex v. Lister, 1 Strange, 478. If the latter report states the opinion correctly, the case is not authority for the proposition that such agreements are valid. It only decides that the husband may lay the wife under restraint when she squanders his property, or goes Into lewd company, and that her mere leaving him in accordance with their mutual agreement does not make out a cause for such action. In 1725, Moore v. Freeman, Bunb. 205, was decided. The wife of Sir Cleaves More had a separate estate, payable by trustees to whom she should appoint. She was living apart from him in adultery. Upon his forcibly retaking her, she appointed a portion of the property to him in consideration of his promise to allow her to live separate. The execution of the power was held to be good. There was no discussion of the validity of the agreement to live apart. This ease has been somewhat relied upon as upholding separation agreements, but the better opinion is that it merely decides that she might give the property to whom she chose, and that without any consideration. 2 Rop. Husb. & Wife, 294, note. Fitzer v. Fitzer, 2 Atk. 511 (decided in 1742), related to a contract to maintain the wife at a place other than her husband's residence. The decision was that the agreement of the husband to so far perform his marital duty was binding upon him. In 1747, Lord Chancellor Hardwicke said: "I do not find that this court ever made a decree for establishing a perpetual separation between husband and wife, or to compel a husband to pay a separate maintenance to his wife, unless upon agreement between them; and even upon this unwillingly." Head v. Head, 3 Atk. 547. In 1757, a writ of habeas corpus was issued at the instance of John Wilkes to obtain the custody of his wife, who was living with her relatives under a separation agreement. The court held this agreement to be a formal renunciation by the husband of his marital right to seize her or force her back...