Appeal
from Circuit Court No. 2 of Baltimore City; James M. Ambler
Judge.
THOMAS
J.
The
bill in this case was filed by the appellee against the
appellant in circuit court No. 2 of Baltimore city, on the
13th of July, 1914, for alimony, counsel fee, and the custody
of their child.
The
evidence shows that the plaintiff and defendant were married
in Baltimore city in January, 1907, and have one child
Frances B. Walker, who on the 29th of March 1914, was seven
years of age. Immediately before the marriage, which took
place in an attorney's office while certain proceedings
were pending against the defendant, they entered into the
following agreement:
"This agreement made this 11th day of January, A.D.
1907, by and between Margaret E. Doyle and Frank B. Walker,
her intended husband, both of Baltimore city and state of
Maryland:
Whereas, a marriage is intended shortly to be solemnized
between the said Margaret E. Doyle and Frank B. Walker, in
view of which they desire to provide for the income and
support to be received by the said Margaret E. Doyle after
the said intended marriage as the sole support to be given
her for herself and the issue of said marriage:
Now, therefore, this agreement witnesseth that in
consideration of the said intended marriage the said Margaret
E. Doyle shall, after said intended marriage, possess and
enjoy all property real and personal which she may now or
shall hereafter hold free from any claim or interest of the
said Frank B. Walker and with full power to her to dispose of
the same by deed or otherwise without the help or hindrance
of him, the said Frank B. Walker. And in consideration of the
agreement in the paragraph last above recited it is
understood and agreed that the said Frank B. Walker shall,
after said intended marriage, possess and enjoy all property
real and personal which he may now or shall hereafter hold
free from any claim or interest of the said Margaret E. Doyle
and with full power to him to dispose of the same by deed or
otherwise without the help or hindrance of her, the said
Margaret E. Doyle. And the said Frank B. Walker, in
consideration of the said intended marriage, hereby covenants
and agrees with the said Margaret E. Doyle, his intended
wife, that from and after their marriage he will give to her
for her support and the support of their issue, the sum of
ten dollars per month during the continuance of said
marriage, the same to be paid to her between the 1st and 10th
days of each and every month; and the said Margaret E. Doyle,
his intended wife, is to receive said sum as the sole support
for herself and her issue to be paid by or demanded of the
said Frank B. Walker by her, the said Margaret E. Doyle,
after her said marriage or any one for her or in her behalf.
As witness our hands and seals.
Margaret E. Doyle. [Seal.]
Frank B. Walker. [Seal.]
Teste: William McCawley."
The
plaintiff and defendant never lived together after their
marriage, although the plaintiff says she "repeatedly
wrote to him and urged him to live as man and wife should
live" for their "baby's sake." The
plaintiff and their child have always lived with her
brother's family in Baltimore city. The defendant, whose
home was in Maryland, and who held a position in the Internal
Revenue Department of the United States, for the district of
Maryland, at a salary at from three to four dollars per day,
continued to pay the plaintiff the ten dollars per month
until the
7th of May, 1913. On the 13th of February, 1913, he wrote her
from Cumberland, Md., where he was then stationed, as
follows:
"My Dear Margaret: I have made arrangements to be in
Baltimore on Sunday, February 16, 1913, and will stop at the
Caswell Hotel. If you will inquire for me there about 11 a.
m., I have something to say to you regarding our future
which, I am sure, will interest and satisfy you. In event you
should not be able to keep this appointment, telegraph me
before 3 o'clock Saturday. Hoping we may be able to reach
satisfactory understanding, I remain,
Sincerely, F. B. Walker."
As
requested in this letter the plaintiff met the defendant at
Hotel Caswell. After greeting her and inquiring about the
family, he asked her if she had been reading about the laws
to be enacted in the Western states, and said:
"I do not know whether you have been reading up on them,
but I have; and after a short time the required residence out
there will be twelve months, but now it is only six months,
and I have a little paper drawn up by an attorney, and I want
you to read it over--a little proposition. I feel I have not
done right in this matter and I voluntarily offer this
proposition."
After
some further talk she says he left the parlor and got his
coat and hat and they went to Camden station, where they
remained until after 10 o'clock, during which time he
showed her the proposed agreement and told her that if she
"did not appear and have a divorce in this state, he
could not obtain a divorce in this state," and if she
did not sign the agreement he would leave the state and go to
some other state where he could get a divorce. They did not
sign the paper, but he gave her a copy of it which she took
home, and she says that she never saw him again until during
the trial of this case. The proposed agreement was as
follows:
"Synopsis
of Substituted Agreement between Mr. and Mrs. Walker.
"In lieu of the agreement now existing between the above
parties, and in substitution thereof, it is agreed on the
part of Mr. Walker as follows: (1) To pay and deposit in some
trust company of Baltimore city, approved by Mrs. Walker, the
sum of -- dollars, on or before the 15th day of each and
every month, for a period of ten years, counting from the
date of said substituted agreement. (2) To give bond, with
security to be approved by Mrs. Walker, in the penalty of two
thousand dollars, for the faithful and prompt payment of said
monthly sum of money to said trust company. (3) That said
deposits shall bear interest at the rate of three per cent.
per annum, and the full amount of said deposits and interest,
to be held by said trust company in trust for the benefit of
Frances B. Walker, and at the expiration of ten years the
principal so paid to said trust company, together with the
interest thereon, to be applied to the education of the said
Frances B. Walker, in any school or college which the said
Mrs. Walker may select. (4) In the event of the death of the
said Frances B. Walker before the expiration of said ten
years, said money so paid to said trust company, together
with the interest thereon, shall become the absolute property
of the said Mrs. Walker, and the aforesaid payments shall
continue to be made by the said Mr. Walker for said period of
ten years, and no longer, whether the said Frances B. Walker
shall live or not, and all payments made after the death of
the said Frances B. Walker, if she should die, shall be the
absolute property of the said Mrs. Walker. (5) Mr. Walker
further agrees to pay all expenses required by law to be paid
together with attorney's fees (the lawyer or lawyers to
be selected by the said Mr. Walker), incident to a suit to be
brought immediately after the execution of said substituted
agreement by the above-named parties, by the said Mrs. Walker
against Mr. Walker, to procure a decree of absolute divorce
from him on the ground of desertion.
Mrs. Walker agrees as follows: (1) In consideration of the
aforegoing to be done by Mr. Walker, promptly after the
execution of a substituted agreement, to bring suit in her
name, through an attorney or attorneys to be selected by Mr.
Walker, against Mr. Walker for the purpose of procuring a
decree of the court divorcing her a vinculo matrimonii from
Mr. Walker. (2) That she will not in said suit ask for
temporary or permanent alimony from Mr. Walker, the
aforementioned payments to be made by Mr. Walker being in
lieu of any and all alimony or claims on the part of Mrs.
Walker against Mr. Walker. (3) That she will testify as party
plaintiff in said divorce suit, upon being called upon to do
so, and will do everything reasonably in her power to
prosecute said suit to a final decree of divorce."
In
March, 1913, the plaintiff received the following letter from
the defendant:
"Cumberland, Md., March 20, 1913.
My Dear Margaret: I learned with a great deal of regret of
your indisposition, and while I would have been sorry to hear
it at any time, I am particularly sorry that it should have
occurred just at this time. I have been looking forward to
your promised letter, but it has not come and as it has been
over a month since I talked with you, I am sure you have had
ample time to consult your friends and make your decision.
Please bear in mind that the time grows shorter each day and,
in fact, has become quite limited. If you are too ill to
write me, have some one telegraph, but in either event I must
have an answer positively by the 24th. Remember, also, that
as you haven't kept your bargain, you must not expect me
to do some of the things which I promised. I am in earnest,
and from a personal standpoint it does not make any
difference to me either way, only for the reasons which I
gave you in Camden station. Hoping that your reply may not be
too late. I am.
Sincerely, Frank B. Walker."
The
plaintiff says that the statement in the letter "that
the time grows shorter" referred to the time within
which he had...
