Welch v. King

• Decision Date: 09 July 1932
• Citation: Welch v. King, 279 Mass. 445, 181 N.E. 846 (Mass. 1932)
• Parties: WELCH et al. v. KING.
• Court: Supreme Judicial Court of Massachusetts

279 Mass. 445

181 N.E. 846

WELCH et al.

v.KING.

Supreme Judicial Court of Massachusetts, Suffolk.

July 9, 1932.

Report from Superior Court, Suffolk County; Hammond, Judge.

Action by E. Sohier Welch and another, trustees, against Edith Madelaine King.The trial judge found the facts, and, without decision, reported the case to the Supreme Judicial Court for its determination.

Judgment for defendant.Tyler, Eamses, Wright & Hooper, Thomas M. Reynolds, and R. G. Wellings, all of Boston, for plaintiffs.

Gaston, Snow, Saltonstall & Hunt, of Boston (Thomas Hunt, of Boston, of counsel), for defendant.

RUGG, C. J.

This is an action of contract whereby the plaintiffs seek to recover the sum of $1,000 alleged to be due under an agreement.The case was submitted upon the pleadings and a statement of agreed facts.The trial judge found the facts as set forth in the statement of agreed facts and without decision reported the case to this court for its determination, such judgment to be entered as law and justice require.

The pertinent facts are these: In 1892Francis C. Welch was appointed guardian of the defendant, then abut ten years of age, and gave bond as required by law.In December, 1902, the guardian filed a petition in the Probate Court alleging that his ward, being then more than eighteen years of age, had entered into a contract of marrige with one Herbert Thorn King, and prayed that as such guardian he might be authorized to transfer certain property then held by him as guardian to himself as trustee under an indenture annexed to the petition.The indenture was of three parts, executed in November, 1902, by and between the defendatn under her maiden name, said Francis C. Welch, of the first part, Herbert Thorn King, the prospective husband of the ward, of the second part, and said Francis C. Welch as trustee under the indenture for the benefit of his ward, of the third part.The indenture contained recitals of a contract of marriage between Herbert Thorn King and said ward, and a reference to R. L. c. 153, § 28.The terms of the trust are set out, and there is annexed a schedule of shares in various corporations and other property constituting the trust estate and to be affected by the indenture.The sixth clause of the indenture is in these words: ‘It is further covenanted and agreed by and between said parties that all income producing property and estate hereafter accuruing to said Edith or to which she is or may be entitled by deed, bequest, inheritance or devise, shall be transferred and conveyed to said trustee, or his successor to be held by him or them upon the trusts herein declared as if the same had been originally paid over and delivered to said trustee on the execution of this Indenture.’A decree of the Probate Court entered on December 18, 1902, was to the effect that ‘the said minor may join with her said guardian in making such marriage contract and for such purpose the said guardian and ward may convey her property to a trustee * * * to be held upon the trust declared in said contract * * * and such conveyance shall have like effect as if such minor was of full age.’Thereafter, from December, 1902, to the decease of the said Francis C. Welch in 1919, said Welch as trustee under the indenture, collected the income and profits of said trust and disposed of it according to the terms of the indenture.Annual accounts were rendered by the trustee of his administration of the trust, which the defendant approved.The original trustee having died, the plaintiffs in 1919 were appointed succeeding trustees under the indenture and have rendered annual accounts in writing to the defendant of their administration of the trust and the defendant has approved them.

The defendant, since the date of the indenture, has nver transferred or conveyed to the original trustee or the succeeding trustees under the indenture any property and no demand has ever been made upon her to do so except that in May, 1931, Herbert Thorn King, husband of the defendant, made a gift to her of a United States Liberty Loan Bond of the value of $1,000.The trustees thereupon gave notice to the defendant that such bond was income producing property within the meaning of clause Sixth of the indenture and demanded that the bond be turned over to them to be held under the indenture for the uses and purposes of the ttust.The defendant refused to comply with this demand.It is to recover the value of that bond that the present action is brought.

It has not been contended that the gift from her husband to the defendant would not fall within the sweep of the covenant as to future acquired property, if binding upon the defendant.SeeIn re Plumptre's Marriage Settlement[1910]1 Ch. D. 609, 615, 616.

The demand was in conformity to the words of said clause Sixth.The question to be decided, therefore, is whether that clause is binding on the defendant.She was a minor at the time the indenture was signed.Therefore, under familiar principles, she cannot be bound now by that clause unless (1) its binding force was authorized by some enabling statute, or unless (2)she has ratified it since reaching majority.

1.The indenture purports by its terms to have been executed under R. L. c. 153, §§ 26, 27, 28(now G. L. c. 209, §§ 25, 26, 27), which are printed in a footnote.¹

Under the common law and without some statute of this nature, marriage between parties, who had previously made contracts with each other to be performed presently or during the marriage, released or extinguished such contracts.This rule did not prevail in equity where some relief respecting antenuptial contracts was afforded.Miller v. Goodwin, 8 Gray, 542;Paine v. Hollister, 139 Mass. 144, 29 N. E. 541;Deshon v. Wood, 148 Mass. 132, 19 N. E. 1,1 L. R. A. 518.Doubtless this statute was enacted to ameliorate the severity of that common law doctrine.The provisions of section 26 by express terms authorize contracts touching only real or personal property or rights of action ‘of which either party may be seised or possessed at the time of the marriage.’Manifestly these words cannot be stretched to include property acquired in the future and long subsequently to the marriage.The concluding sentence of that section is quite inconsistent with the conception of including future acquired property.The requirements of section 27 respecting a schedule of property to be affected, to be annexed to the contract and recorded not later than ninety days after the marriage, are not susceptible of comprising future acquired property.The terms of section 28, under which alone the contract here in issue respecting a minor could be made binding, authorize simply the making of such a marriage contract as is described in the two preceding sections and a conveyance of the ‘real and personal property’ of the ward to a trustee.There is nothing in this section to empower anybody to make a contract reaching into the future so as to bind property and estate thereafter accruing to the ward.The necessary construction of the enabling statute excludes the idea that it authorizes or contemplates a contract to be made by and in behalf of a female minor to govern the disposition of property accruing to her after the marriage and after the time for recording the contract and schedule.There is nothing in Freeland v. Freeland, 128 Mass. 509, justifying a different result.The antenuptial contract there before the court was not made by and in behalf of a female minor but between persons of full age.Although it contained a clause to the effect that each party after marriage should ‘retain their respective estates, with such as may hereafter accrue to them, separate and apart from the other,’ the controversy did not relate to the meaning, effect or validity of...