Wellington v. Rugg

• Decision Date: 19 October 1922
• Citation: 243 Mass. 30,136 N.E. 831
• Parties: WELLINGTON v. RUGG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 30

136 N.E. 831

WELLINGTON

v.RUGG.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 19, 1922.

Report from Supreme Judicial Court, Worcester County.

Suit by Mary E. L. Wellington against Charles B. Rugg, administrator of Charles H. Wellington, deceased, to set aside an antenuptial agreement between plaintiff and the decedent, and to have it decreed that she was entitled to all her statutory and legal rights as his widow. Demurrer overruled, and case reported by a single justice for determination by the full court. Demurrer overruled.

By the antenuptial agreement plaintiff relinquished all rights in the property of the decedent, alleged to be of the value of not less than $400,000, in consideration of his promise to bequeath to her the sum of $5,000. The bill alleged that the decedent made certain false and fraudulent promises and representations, the nature of which appear from the opinion, to induce her to make such agreement; that on repeated occasions subsequent to the making of the agreement he promised her that he would provide for her in a pecuniary way, and she would be well taken care of, and that, relying on such promises and assurances, she had not interfered with his free and full use and enjoyment ofall his property; that decedent never intended to fulfill the ante-nuptial agreement, and had never in any way secured or given her such sum of $5,000, or anything in lieu thereof, and had never fulfilled any of the other promises. It was also alleged that in fraud of plaintiff's rights, and for the purpose of defrauding her, decedent had established a number of trusts and made gifts to his daughters, and that one of the daughters and her husband had influenced, aided, and abetted him to make some of such transactions.Marvin M. Taylor, of Worcester, for plaintiff.

Harold S. Davis, of Boston, for defendant.

CROSBY, J.

This is a suit in equity to set aside an ante-nuptial agreement, and is reported to the full court, by a single justice, for determination upon the demurrer embodied in the answer to the substituted bill. The agreement, a copy of which, dated March 14, 1914, is annexed to the bill, recites that Charles H. Wellington (the defendant's intestate) and the plaintiff ‘desire in the contemplation of marriage with each other, to effect an antenuptial agreement.’ The second paragraph of the agreement provides as follows:

‘2. That the said Charles H. Wellington may dispose of all his property, both real and personal, that he may have at time of such marriage, or may thereafter acquire during said marriage, by his last will to any legatee or legatees, devisee or devisees he may select, other than the said Mary E. Lamprey, and in default of such will, his entire estate, both real and personal, shall descend according to the statutes then in force relative to the distribution of intestate estates, to the exclusion however, of the said Mary E. Lamprey, who shall in no event take any part as heir, except as hereinafter stated.’

It is provided by paragraph 4:

‘That the said Charles H. Wellington shall, in further consideration, and in lieu of all dower and other rights of said Mary E. Lamprey, give and bequeath in his last will the sum of five thousanddollars ($5,000) to the said Mary E. Lamprey; the above sum to be paid to her within six (6) months after his decease.’

On March 15, 1914, the parties were married, and they lived together until the decease of the husband on June 17, 1920. He died at the age of about 80 years intestate, without having paid or secured to the plaintiff the sum of $5,000, or having made any provision for her outside the ante-nuptial agreement. The plaintiff contends (1) that on account of the fraud practiced upon her by the intestate, as alleged in the bill, the agreement never had any legal effect or validity; and (2) that if it ever was a valid instrument there was a total failure of consideration, as the intestate failed to pay to her the sum agreed, and did not make a will or otherwise give to her anything in lieu of $5,000.

The agreement is an executory bilateral contract, and the failure of the intestate to carry out his promise is not a ground for setting the contract aside; the consideration on his part is his promise to give the plaintiff $5,000 by his will. The result of his failure to perform entitles the plaintiff to maintain an action for damages for breach of the contract. Marble Co. v. Ripley, 10 Wall. 339, 355, 19 L. Ed. 955;Howe v. Watson, 179 Mass. 30, 60 N. E. 415;Clarke v. Treas. & Rec. Gen., 226 Mass. 301, 304, 115 N. E. 416, L. R. A. 1917D, 800;Gardner v. Knight, 124 Ala. 273, 27 South. 298. This is the ordinary rule as applied to contracts generally and it is also applicable to ante-nuptial agreements. Turner v. Warren, 160 Pa. 336, 344, 28 Atl. 781;Bibelhausen v. Bibelhausen, 159 Wis. 365, 369, 150 N. W. 516.

The allegation that the intestate did not intend to carry out the contract in no way affects the rights of the plaintiff thereunder. His intention is immaterial; if he had performed the contract she would have received a legacy of $5,000; as he failed to do so she is entitled to recover from his estate precisely the same amount. By the express language of the contract the rights and obligations of the parties are mutually independent. Paragraph 2, above quoted, provides that the plaintiff shall take no part of the estate except $5,000 whether her husband died testate or intestate; it cannot successfully be contended that as he did not make a will there is a failure of consideration; therefore she is not entitled to have the agreement set aside on that ground, Naill v. Maurer, 25 Md. 532. Such a contract may be enforced by her after his death. Miller v. Goodwin, 8 Gray, 542;Freeland v. Freeland, 128 Mass. 509;Collins v. Collins, 212 Mass. 131, 98 N. E. 588;Eaton v. Eaton, 233 Mass. 351, 365, 124 N. E. 37, 5 A. L. R. 1426.

The plaintiff also seeks to set aside the agreement on the ground that she was induced to enter into it by reason of the false representations of the intestate. It was executed at a time when the parties had mutually become engaged and had promised to marry each other. The bill alleges that:

‘A great mutual trust, confidence and respect existed between the plaintiff and the said Wellington at the time of the making of the antenuptial agreement and of their marriage.’

In the absence of such an averment, it may be assumed that the parties to such a contract occupied a relation of trust and confidence and that they were bound to act fairly and in good faith in their dealings with each other. The rule is stated in Eaton v. Eaton, 233 Mass. 351, 124 N. E. 37, 5 A. L. R. 1426, recently decided by this court, by the present Chief Justice, at page 371 of 233 Mass., at page 41 of 124 N. E. (5 A. L. R. 1426), as follows:

‘The participants in an antenuptial contract do not stand at arm's length with reference to each other. Their relation is one of highest trust and confidence. It demands the utmost good faith on the part of each. This is not only a necessary concomitant of the execution of such an instrument, but the performance of its stipulations must also be in the same spirit.’

In paragraph 4, the allegation that the intestate ‘concealed’ the amount of his property in the absence of anything to show that he made false representations respecting it or prevented the plaintiff from obtaining whatever facts she desired concerning its character or value is immaterial. The failure on his part to inform her of what he owned falls far short of fraudulent concealment. So far as appears had she so wished she could have made inquiry of him, and also could have made such investigation as she saw fit before making the contract. Notwithstanding the confidential relations between the parties, the simple failure voluntarily to disclose the amount of his property does not constitute actionable fraud. Bower on Actionable Nondisclosure, § 135; Potts v. Chapin, 133 Mass. 276;Windram Manufacturing Co. v. Boston Blacking Co., 239 Mass. 123, 131 N. E. 454, 17 A. L. R. 669. In the case last cited it was said (239 Mass. at...