Forbes v. Tuckerman

• Decision Date: 16 April 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Rose G. Forbes v. John F. Tuckerman & others

115 Mass. 115

Rose G. Forbes v. John F. Tuckerman & others

Supreme Court of Massachusetts

April 16, 1874

[Syllabus Material]

Suffolk. Bill in equity by Rose G. Forbes, wife of Robert Bennett Forbes, against John F. Tuckerman, Robert B. Forbes, Jr. James Murray Forbes, and Edith Forbes Perkins, wife of Charles Eliot Perkins, setting forth the conveyance by the plaintiff and her husband to the defendant Tuckerman of certain property in trust to pay the income to the plaintiff during life, and upon her decease to convey the property to such persons as she should appoint by her will, and, in default of appointment, to such persons as should be entitled to receive the same, had the said Robert Bennett Forbes died seised thereof intestate; that the defendant Tuckerman refused to pay over the income to the plaintiff, and that the other defendants were the only children of Robert Bennett Forbes, and would be his only heirs and next of kin if he were deceased intestate. Prayer for an account, and that the defendant Tuckerman should be decreed to pay what should be found to be due from him on such account.

The defendant Tuckerman demurred, on the ground that Robert Bennett Forbes should have been made a party to the suit, and on other grounds waived at the argument. At the hearing before Devens, J., the demurrer was overruled, and the defendant Tuckerman ordered to answer within thirty days. He appealed to the full court.

Order affirmed.

W. P. Walley, for the defendant Tuckerman. 1. The husband should have been made a party to the suit. The Rev. Sts. c. 77, § 4, authorized the court, in certain cases, to allow the wife to prosecute any suit in law or equity as if she were unmarried. The St. of 1845, c. 208, § 5, gave a wife, in relation to her separate estate, the same remedies at law and in equity as if she were unmarried. This was repealed by the Gen. Sts. c. 182. While it was in force Conant v. Warren, 6 Gray 562, was decided. The Gen. Sts. c. 108, § 32, follow the language of the Rev. Sts., and authorize the court in certain cases to allow a married woman to sue and be sued in law or equity as if she were sole; but § 3 of the same chapter does not follow the language of the St. of 1845, but only provides that the wife in relation to her separate property may sue and be sued as if she were sole. If in § 3 the words "sue and be sued" without the words "at law or in equity" authorize the bringing of a suit in equity as well as an action at law, the additional words "at law and in equity," in § 32 of the same chapter, have no force. The words "sue and be sued" in § 3 should be held to apply only to actions at law. Again, in relation to her separate estate a wife must sue at law alone. Hennessey v. White, 2 Allen 48. She may join her husband in equity. Burns v. Lynde, 6 Allen 305. But "may sue alone" cannot mean one thing at law and another in equity. These cases, then, can only be reconciled by putting the second decision on the ground that the words "may sue alone" apply only to actions at law; if so, Mrs. Forbes could not bring this suit in equity alone.

2. The defendant should not have been ordered to answer pending the appeal to this court from the decree overruling the demurrer. The Gen. Sts. c. 113, § 8, provide that an appeal from a final decree shall stay all proceedings under such decree; § 10, that an appeal from an interlocutory decree shall not suspend the execution of the decree nor transfer to the full court the entire cause. Under this statute a decree overruling a demurrer is a final decree. Originally, a decree allowing or overruling a demurrer was the end of the suit; the plaintiff could not amend or the defendant answer unless by leave of court; afterwards the practice came to be to allow the bill to be amended or an answer filed, as of course; now the same is allowed under rule of court. But the decree overruling a demurrer, though now not in fact a final decree under the rules, is a final decree as opposed to an interlocutory decree under the statutes. The court cannot by rules change the statutes. Trim v. Baker, 1 Sim. & Stu. 469. Smith v. Barnes, Dick. 67. Watkins v. Bush, Dick. 701. Coningsby v. Jekyll, 2 P. Wms. 300. Baker v. Mellish, 11 Ves. 68. Tyler v. Bell, 2 Myl. & C. 89. Schneider v. Lizardi, 9 Beav. 461. Attorney General v. Tudor Ice Co., 104 Mass. 239. If the decree determines all the questions in issue and does not adjourn any matter whatever for further consideration, it is a final decree. 1 Seton on Decrees, 1, 2. 1 Dan. Ch. Pract. (5th Eng. ed.) 850, 855. Goldsmith's Proceedings in Eq. 401, 402, 508. The sections relating to appeals in the Gen. Sts. c. 113, are taken mainly from the St. of 1859, c. 237. It is submitted that by the words "interlocutory decrees" in the Gen. Sts. c. 113, § 10, the legislature meant interlocutory decrees, as defined in the St. of 1859, c. 237, § 4, namely, those "granting or refusing an injunction, or appointing or refusing to appoint a receiver." The Gen. Sts. c. 113, § 10, further provide that an appeal from an interlocutory decree shall not transfer to the full court the entire cause; at the time of the passage of this act, an appeal from a decree overruling a demurrer did transfer to the full court the entire cause. It seems, therefore, that the legislature did not consider such a decree interlocutory. An appeal from a decree overruling a demurrer has, by the uniform practice of the court, operated as a stay of all further proceedings in the suit until the appeal was determined. The court have, by this practice, construed the statute. A different practice will result in great inconvenience.

W. S. Gardner & C. E. Stratton, for the plaintiff, were not called upon.

Gray, C. J. Endicott, J., did not sit. Ames & Devens, JJ., absent.

OPINION

Gray

The reasons upon which the English courts of chancery have required the husband to be made a party to a suit by the wife in relation to her separate property, are because he may have an interest in the property himself, and because he is the lawful protector of her interests. Story Eq. Pl. § 63. Neither reason is applicable to this case.

The suit is brought by the wife for income payable to her by the terms of the indenture of trust under which the appellant holds the property. The demurrer, so far as it was based on the husband's interest in the property, or on his having been a party to the indenture, was waived at the argument. And the making him a party to the bill, merely because he is the plaintiff's husband, has been dispensed with by our statutes.

The earliest statutes which enlarged the wife's powers over her property expressly enabled her to commence, prosecute and defend suits in equity as well as at law. Rev. Sts. c. 77, § 4; reenacted in Gen. Sts. c. 108, § 32. St. 1845, c. 208, § 5. Under those statutes, it is indisputable that her husband need not have been made a party, unless he had an interest in the property. Conant v. Warren, 6 Gray 562. The later statutes, making her independence in regard to property more complete, and authorizing her, in general terms, "to sue and be sued in all matters relating to her property in the same manner as if she were sole," cannot by any reasonable construction be taken to give her a less extensive power to assert and defend her rights in court; but at law oblige, and in equity permit her to sue alone, when no interest of her husband is involved. Sts. 1855, c. 304, § 4; 1857, c. 249, § 3. Gen. Sts. c. 108, § 3. Hennessey v. White, 2 Allen 48. Burns v. Lynde, 6 Allen 305. The demurrer was therefore rightly overruled.

The appellant further contends that the order overruling the demurrer was a final decree, and that he could not therefore be...