Terkelsen v. Peterson

• Decision Date: 25 February 1914
• Citation: 104 N.E. 351,216 Mass. 531
• Parties: TERKELSEN v. PETERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 531

104 N.E. 351

TERKELSEN v. PETERSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1914

COUNSEL

Jos L. Keogh and Daniel M. Herlihy, both of Boston, for appellants.

Philip Nichols and Wm. J. Kurth, both of Boston, for appellee.

OPINION

RUGG C.J.

A husband and wife and the brother of the wife, who joined in effect as trustee for her for the purpose of enforcing the arrangements made, severally entered into an agreement under seal, whereby, after reciting in substance that the husband and wife had separated and were residing apart, that the husband had indulged in intoxicating liquors to excess, and had used profane and improper language in the family, and that it was the desire of the husband and wife 'for the sake of the children to resume their home life * * * and to bring up their children in a proper manner,' it was covenanted among other matters that the husband should pay to the wife regularly once each week, at least $9.There were divers other stipulations, including a resumption of marital relations, good conduct in the future on the part of each and friendly offices to both on the part of the brother of the wife.The family relations were resumed after the contract was made in May, 1910, and continued until July 8, 1912, when the wife with her three children left the husband because of his intoxication and cruel and abusive treatment.This action is brought to recover for comfortable support and maintenance since July 8, which is alleged to be $9 per week, less some payments made by the husband.There was evidence to the effect that the actual cost of living of the wife during this period was about $9 per week.

Agreements between a third person acting for either a husband or a wife and a husband or wife, made while the spouses actually are living apart or in instant contemplation of a separation which takes place immediately, and for the purpose of securing definite and fixed support for the wife from a trust fund, or gross payment for her benefit, or a bond conditioned for her support, or a division of property between them, have been held valid and enforced provided they were fairly made.Page v. Trufant,2 Mass. 159, 3 Am. Dec. 41;Hollenbeck v. Pixley, 3 Gray, 521;Holbrook v. Comstock,16 Gray, 109;Fox v. Davis,113 Mass. 255, 18 Am. Rep. 476;Alley v. Winn,134 Mass. 77, 45 Am. Rep. 297;Winn v. Sanford,148 Mass. 39, 18 N.E. 677, 1 L. R A. 512;Grime v. Borden,166 Mass. 198, 44 N.E. 216;Polson v. Stewart,167 Mass. 211, 45 N.E. 737, 36L. R. A. 771, 57 Am. St. Rep. 452;Bailey v. Dillon,186 Mass. 244, 71 N.E. 538, 66 L. R. A. 427.It was held by a divided court in Merrill v. Peaslee,146 Mass. 460, 16 N.E. 271, 4 Am. St. Rep. 334, that a promise by a wife, then actually living apart from her husband for justifiable cause, to live with the husband as wife during their joint lives was not a legal consideration of a note for $5,000 given to a trustee for the wife to be paid at the husband's death provided the contract had been performed by the wife.But as shown in Polson v. Stewart,167 Mass. 211, 216, 45 N.E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452, that decision is carefully limited and is not to be extended.

The main purpose of the contract in the case at bar was to keep the family together chiefly for the proper nurture of the children.This was a duty resting upon both parents, although the particular contribution of each to that end as implied by law would be different.The performance of this mutual duty required the regular contribution of sufficient money to carry on the household.Any fair and lawful composition of differences for the purpose of establishing the family upon its natural basis was most laudable.One obligation of the husband was to support the family.There is no inherent illegality in an arrangement with the mother by the father to support a family of children, even though such an agreement may contemplate the reuniting of a separated family.Such an agreement would not be a payment by him in the nature of hire to secure the return of the wife to the marital relation.It would be simply a means of assuring to the wife sufficient out of the earnings of the husband to enable her to meet the ordinary family expenses.Such an agreement would not be within the rule of Merrill v. Peaslee,146 Mass. 460, 16 N.E. 271, 4 Am. St. Rep. 334.Reading this agreement in the light of the circumstances of the family, its purpose appears to have been, so far as concerned its financial aspects, to secure to the wife out of the weekly wages of a husband liable to yield to the temptation of drink enough to provide for the absolute necessities of life for herself and children.But this arrangement was made in contemplation of the restablishment of the family.

The situation now presented is not the family reunited, but the family separated again.The...