Harrington v. Harrington.

• Decision Date: 28 February 1948
• Docket Number: 158/54.
• Citation: 57 A.2d 542
• Parties: HARRINGTON et al. v. HARRINGTON.
• Court: New Jersey Court of Chancery

57 A.2d 542

HARRINGTON et al. v. HARRINGTON.

158/54.

Court of Chancery of New Jersey.

Feb. 28, 1948.

Suit by Lydia Crane Harrington, an infant, by her next friend, Annetta McDonnell, and another, against William Stuart Harrington, for performance of agreement to make will and to make payments for support, and to compel payment of bills.

Decree in accordance with opinion.

Syllabus by the Court.

1. An infant for whose benefit, in part, an agreement between its parents was made, may sue by its next friend for specific performance thereof.

2. Equity, in New Jersey, has complete and exclusive jurisdiction over contracts between husband and wife.

3. A contract between husband and wife, by which the husband agrees to make a will in favor of his minor child, and providing for the support and maintenance of the wife and child, executed in the State of New York while the parties were residents there and expressly providing that its interpretation and the rights of the parties ‘shall be governed by the Laws of the State of New York,’ is valid and enforceable under the laws of that state, is not void per se in New Jersey as against the public policy of this state, and is enforceable here at the suit of the minor child, by her next friend, and by the wife by bill for specific performance in this court.

4. There is a distinction between the inherent or constitutional jurisdiction of the Court of Chancery, and its statutory jurisdiction. The former is not subject to restriction, modification or abolition by anything short of a constitutional amendment. Mere statutory enactment, even though expressive of a public policy, will not suffice. The latter or statutory jurisdiction may be modified or entirely abolished by statute.

5. The jurisdiction of the Court of Chancery in suits for divorce, nullity or maintenance is purely statutory; that over contracts between husband and wife is inherent.

WURTS & PLYMPTON, of Hackensack (Harry R. Cooper, of Belmar, of counsel), for complainants.

Parsons, Labrecque, Canzona & Combs, of Red Bank, for defendant.

BERRY, Vice Chancellor.

The bill is two-fold in its aspect and purpose:

1. On behalf of the infant complainant it seeks a decree, (a) compelling the performance by the defendant of his agreement to make a will in her favor; and (b) the performance of his agreement to pay $250.00 per month for her support, and a money decree for arrearages in payments of the stipulated sum.

2. The complainant Annetta McDonnell, individually, seeks a decree compelling the defendant to pay some outstanding bills contracted by her while she was the defendant's wife, and as provided in an agreement entered into between them in the state of New York while they were still husband and wife, and while residents of that state.

That the bill is maintainable by the infant for whose benefit, in part, the agreement was made, see R.S. 2:26-3.6, N.J.S.A.; Van Dyne v. Vreeland, 11 N.J.Eq. 370; Kamens v. Anderson, 99 N.J.Eq. 490, 133 A. 718; Di Girolamo v. Di Matteo, 108 N.J.Eq. 592, 156 A. 24; Herbert v. Corby, 124 N.J.L. 249, 11 A.2d 240, affirmed 125 N.J.L. 502, 17 A.2d 541; Hufnagel v. Scholp, 138 N.J.Eq. 16, 46 A.2d 394. In Di Girolamo v. Di Matteo, supra, Vice Chancellor Buchanan said, at page 595 of 108 N.J.Eq., at page 25 of 156 A.: ‘It is unnecessary to cite authority for the well established principle that a contract to give or devise by will is enforceable in equity. It is equally true that the suit may be maintained by the child for whose benefit the agreement was made, notwithstanding she was not a party to the agreement.’

Equity in New Jersey has complete and exclusive jurisdiction over contracts between husband and wife, and this extends to their specific enforcement. Dennison v. Dennison, 98 N.J.Eq. 230, 130 A. 463, affirmed 99 N.J.Eq. 883, 133 A. 919.

In dealing with this controversy and in considering the facts to be hereinafter stated, it should be borne in mind that this is not a bill to enforce an agreement to pay alimony to a wife; nor is it a bill to enforce either the common law or the statutory liability of a husband to support his wife; and it is not a bill to enforce the statutory liability of a parent for the support of a minor child of divorced parents, who is an inhabitant of this state, under R.S. 9:2-1, N.J.S.A. Such statutory jurisdiction is not, and could not be, invoked because the infant complainant is not an inhabitant of this state. Relief is sought under the inherent jurisdiction of this court over agreements between husband and wife.

This controversy arises out of the following state of facts:

The complainant Annetta McDonnell and the defendant William Stuart Harrington were married in New York on June 10, 1939. Thereafter they lived in New Haven, Connecticut, until 1941 when they moved to New York City where they lived until their separation early in October, 1944. One child, the infant complainant, was born of the marriage. On October 25, 1944, the separation agreement the subject of this suit was executed by them in New York. That agreement expressly provides that its interpretation and the rights of the parties ‘shall be governed by the Laws of the State of New York.’ The agreement further provides that the wife ‘shall have the sole and exclusive custody of the child and shall control and have supervision of her upbringing, subject to the’ right of visitation by the husband as specified. It also provides for the payment of $500.00 monthly to the wife for her support and maintenance during the defendant's life, and in the event of the wife's remarriage, (which has occurred), $3,000.00 a year in monthly payments of $250.00 each ‘until the Child attains the age of 21 years or marries, it being understood that such monthly payments of $250.00 are solely for the maintenance and support of the Child and to be used for such purposes only.’ Then follow provisions for the child's education, extraordinary medical, nursing and hospital treatment, all at the defendant husband's expense. The obligations of the husband under the agreement terminate on his death, but for payments in default at that time, his estate is liable.

Aside from the provision for the payment of $250.00 monthly for the support of the child, perhaps the most important provision of the agreement is that contained in the 12th paragraph thereof, which reads as follows: ‘12. The husband shall forthwith make and keep in full force and effect until his death a will bequeathing and devising to the Child not less than one-third (1/3) of his entire estate. The Husband shall have the right to change such Will in the event other children are born to him to provide that such children shall share ‘per capita’ in his estate. Upon the child's attainment of the age of 21 years the Husband shall have the right to change his Will in any manner he may desire.'

By the agreement, it is also provided that: ‘The wife accepts the provisions herein made for her in lieu of and in full settlement and satisfaction of any and all claims and rights against the Husband for her support and maintenance in full satisfaction and discharge of alimony whether temporary or permanent and for the support, maintenance and education of the Child,’ etc. and agrees, ‘* * * to save the Husband harmless from the payment of any bills previously contracted, with the exception of certain bills previously contracted, presently due and aggregating approximately the sum of $800.00, which the Husband agrees to promptly pay.’

The agreement further provides that in the event of the husband's default, ‘the Wife shall have the right, at her election, to sue for damages for the breach of this agreement, or bring an action for a legal separation or for support and maintenance.’ And further, that the agreement ‘shall not be construed to prevent either party from suing for an absolute or limited divorce in this or any other competent jurisdiction, * * * but no decree so obtained by either party shall in any way affect this agreement or any of theterms, covenants, or conditions hereof, this agreement being absolute, unconditional, and irrevocable and both parties intending to be legally bound hereby.’

The agreement also provides that in the event the wife sues for divorce the agreement shall be offered in evidence and shall become a part of the decree.

Shortly after this agreement was executed the wife went to Reno, Nevada, and prosecuted an action of divorce against the defendant, and a decree of divorce in her favor was entered in that proceeding on December 12, 1944. The agreement was incorporated in that decree.

Following the entry of this final decree of divorce, both parties remarried and the husband moved to New Jersey and is now a resident of this state. The wife, except for the period spent in Nevada prosecuting her divorce action, remained a resident of New York, residing in the apartment formerly occupied by the parties, then later moved to Connecticut where she now resides and has the custody of the infant complainant, the child of the marriage.

The bill alleges the defendant's default under the above-mentioned agreement in the following particulars: (1) Failure to make a will in favor of the infant complainant, as provided in the agreement; (2) Failure to make the payments of $250.00 a month for the child's support; and (3) ‘has failed, neglected and refused’ to pay bills contracted by the defendant's wife prior to the execution of the agreement, aggregating the sum of $800.00 as provided therein. The bill alleges that these bills remain unpaid and that the complainant, former wife of the defendant, ‘is being harassed and beset by importunate creditors and their attorneys and agents who are attempting to collect the same,’ and that she is without means to pay them.

The bill further alleges that the defendant is in receipt of an income of approximately $15,000.00 a year as beneficiary of a spendthrift trust under the will of his...