116 N.J. Eq. 426 | N.J. Ct. of Ch. | 1934
This is a bill for the construction of the last will of Adel Keller, deceased. Testatrix left two daughters, both married. *427 The will gives the entire estate to the executor in trust to convert into money and to divide into two parts, one of which he is directed to pay to one of the daughters. The other half of the estate the executor is directed to deposit in a savings account for the following purposes:
"The second part so set aside and so deposited, my said executor, as trustee, shall pay to my daughter, Anna Dwyer, only when and if she shall no longer be the legal wife of Hurlburt Dwyer, either because he shall have predeceased my said daughter, Anna Dwyer, or because of an absolute or qualified legal divorce between them." Then follows a gift over in the event Anna shall die before becoming entitled to her share of the estate.
Anna and her husband have not had any marital trouble. She contends that the condition upon which the gift is made, namely, that she be no longer the wife of Hurlburt, either because of his death or their divorce, is contrary to public policy and void, and that the gift to her has vested absolutely. The cases in point are collected in 40 Cyc. 1703, and in a note in68 A.L.R. 757.
Counsel for defendants argue that a distinction should be drawn between gifts predicated on separation and those conditioned on divorce; that while the separation of spouses is not, divorce is, sanctioned by law. The rule is well established that a condition which puts a premium on the separation of husband and wife and is intended to cause or continue such a separation, is void as against public policy. Brizendine v. American Trust andSavings Bank,
Comparatively few cases have treated of gifts intended to bring about divorce, rather than mere separation, and the same rules have generally been applied. Moores v. Gwynne, 33 Ohio C.C.463; O'Brien v. Barkley, 28 N.Y. Supp. 1049; Cruger v.Phelps,
On the other hand, a testator may properly provide for the event of separation or divorce, actual or anticipated, when his gift is not calculated to bring about such occurrence. Thus inBaker v. Hickman,
And a gift of income to a daughter until divorce or the death of her husband and then the corpus, is sustained on the ground that it does not exhibit an intent to cause divorce. Born v.Horstmann,
Two cases have upheld conditions attached to legacies, although clearly intended to interfere with the marital relationship. InCowley v. Twombly,
Daboll v. Moon,
Neither of these cases appears to me sound. While it is true that our law sanctions divorce, both absolute and limited, the divorce must be based on the wrongful actions of the defendant. An inducement to divorce, is an inducement to the wrong which is the necessary prerequisite of divorce. A Massachusetts decision later than Cowley v. Twombly, holds: *431 "If the testator's purpose was to induce a separation or divorce of his daughter from her husband upon the happening of which the fund with accrued interest would immediately become payable to her, the condition for this reason would be void." Coe v.Hill, supra. The premise of Mr. Justice Barker, that a gift conditioned on death or divorce is more apt to cause the latter than the former, is weak. The great number of divorces proves that society is tolerant of marital misconduct and that a large gift conditioned on divorce may likely disrupt the family. If a provision in a will is such as is apt, in the ordinary course of events, to bring about wrongdoing and divorce, an intention to cause that effect should be attributed to the testator.
The condition annexed to the gift under consideration appears to have ben calculated to lead to a divorce between complainant and her husband; it violates the policy of the state and is void; the gift to complainant is absolute.