MacLennan v. MacLennan

• Decision Date: 23 June 1942
• Citation: 311 Mass. 709,42 N.E.2d 838
• Parties: MARY R. MACLENNAN v. ANGUS D. MACLENNAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 709

42 N.E.2d 838

MARY R. MACLENNAN v. ANGUS D. MACLENNAN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1942

February 4, 1942.

Present: FIELD, C.

J., QUA, COX, &amp RONAN, JJ.

Marriage and Divorce, Equitable causes of action. Husband and Wife. Equity Jurisdiction, Husband and wife. Probate Court, Jurisdiction Striking out portion of pleading. Equity Pleading and Practice, Striking out portion of pleading. Trust, Express trust: what constitutes. Joint Tenants. Personal Property Ownership.

A Probate Court had jurisdiction under G. L. (Ter. Ed.) c. 208, Section 33, as appearing in St. 1936, c. 221, Section 1, of a petition in equity by a wife against her husband, filed in a pending divorce proceeding between the parties in that court and amended between the time of entry of a decree nisi and the time of its becoming absolute, seeking a determination of the parties' rights in certain property standing in their names jointly. A motion to strike out a portion of the answer to a petition in equity in a

Probate Court on the ground that such portion state no defence is anomalous.

Allegations, that stocks were purchased with money of a husband and that the certificates were taken in the names of him and of his wife jointly only to protect her in case of his predeceasing her and with an understanding that the stocks should remain his property and that she should not have nor claim any "title" or "present interest" therein sufficiently averred that whatever interest she had in the stocks was charged with an express trust for his benefit.

PETITION IN EQUITY, filed in the Probate Court for the county of Suffolk on September 16, 1940, in divorce proceedings commenced on July 16, 1940.

Certain matters were reported by Wilson, J. W. P. Everts, for the petitioner.

G. H. Lucey, (J.

H. Amsbury with him,) for the respondent.

QUA, J. The parties were formerly husband and wife. On December 10, 1940, a decree nisi for divorce was granted by the Probate Court in favor of the wife against the husband. At some time before the decree nisi was entered a "Bill in Equity," or petition, by the wife against the husband was filed in the divorce proceeding. The purpose of the petition, as disclosed by an amended or substitute petition allowed by the court on January 27, 1941, was to ascertain the interests of the respective parties in a list of stocks the certificates of which stood in the names of husband and wife "As joint tenants with right of survivorship and not as tenants in common," and to enforce rights of the wife therein. The judge has reported for our determination the correctness of his action in three interlocutory matters: (1) the overruling of the husband's demurrer to the amended petition, (2) the denial of the wife's motion to strike out certain portions of the husband's answer to the amended petition and (3) the overruling of the wife's demurrer to a counterclaim filed by the husband.

1. On the husband's demurrer to the wife's amended petition the question arises whether the Probate Court had jurisdiction to entertain the petition. The amended petition alleges that the stock certificates stand in the names of both parties as joint tenants in the form hereinbefore set forth; that they were bought by husband and wife with money which previously stood in savings banks and cooperative banks in their names "jointly with right of survivorship"; and that the husband refuses to transfer to the wife "her share" of the stocks and of the dividends; and prays that the court determine the interest of the parties in the stocks and the dividends, and that the court order the husband to turn over to the wife "her interest" in the dividends.

Chapter 208 of the Tercentenary Edition of the General Laws is entitled "Divorce." Section 33 of that chapter, as amended, reads: "The court may, if the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of this chapter according to the course of proceedings in ecclesiastical courts or in courts of equity, and may issue process of attachment and execution and all other proper and necessary processes. In such proceedings the court shall have jurisdiction in equity of all causes cognizable under the general principles of equity jurisprudence, arising between husband and wife, such jurisdiction to be exercised in accordance with the usual course of practice in equity proceedings." The last sentence of the section, with which we are here particularly concerned, was added by St. 1936, c. 221, Section 1. That statute is entitled, "An Act conferring equity jurisdiction in divorce and separate support proceedings of causes in equity between husband and wife." Its provisions are plain. It confers upon "the court" which hears a matter "coming within the purview of" c. 208 (or of Section 32 of c. 209, relating to separate support; see c. 209, Section 33, as amended) jurisdiction "of all causes cognizable under the general principles of equity jurisprudence" between the husband and the wife. The new jurisdiction is to be exercised "In such proceedings": that is, as a part of the proceedings begun under c. 208 (or under Section 32 of c. 209), but it is to be exercised "in accordance with the usual course of practice in equity proceedings." These conditions would seem to be best satisfied by the filing in the original divorce suit or other proceeding begun under c. 208 (or under Section 32 of c. 209) of a petition setting forth the cause of action in equity. See Lord v. Cummings, 303 Mass. 457 , 459. That was the procedure here adopted. Thereafter, although the suit in equity, with all that pertains to it, is a part of the original proceeding, it pursues a separate path to a separate end of its own "in accordance with the usual course of practice in equity proceedings." Pleadings, orders, decrees, and other papers pertaining to the equity matter would properly be entitled and filed in the original proceeding under c. 208 (or under Section 32 of c. 209), but should be in some manner specially designated as applicable to the asserted cause of action in equity.

It is not difficult to discover reasons for the amendment of 1936. Causes of action in equity between husband and wife would commonly, if not always, relate to property rights, about which controversies are likely to arise at the time of divorce or separate support proceedings. Questions of title may well require decision before the court can deal properly with issues relating to alimony and to other forms of allowances under c. 208 or under Section 32 of c. 209. The existence of a readily available method of settling disputes over property completely and finally in the same court which deals with the marital relations of the parties may be a substantial aid in the efficient administration of justice. Before the amendment of 1936 it had been held that libels for divorce were on the law side of the court, although the procedure was assimilated to that "in ecclesiastical courts or in courts of equity" (G. L. [Ter. Ed.] c. 208, Section 33; Greenia v. Greenia, 206 Mass. 449 , 450), and that a petition to determine the wife's property rights could not be engrafted upon a divorce proceeding. Patterson v. Patterson, 197 Mass. 112 . Adams v. Holt, 214 Mass. 77. The statute of 1936 was intended to change the law as formerly declared.

The present case falls within the jurisdiction conferred by the amended statute. The original petition in equity was filed in the divorce case before the decree nisi was entered. Even when the amendment to the original petition was allowed the divorce cause was still...