282 Mass. 600 | Mass. | 1933
This is an action on a written contract, dated September 21, 1925, between the plaintiff and the defendant’s testator, Richard Sprague Stearns. The declaration is in two counts, the first for alleged breach of that part of the contract which provides for the support of the plaintiff and the payment of certain other expenses. The second is for damages for the failure of the defendant’s testator to devise and bequeath to the plaintiff an undivided one-fifth interest of all his property and estate.
At the time the contract was entered into the testator was seventy-two years old. His wife had died. He had four adult children living. The plaintiff, a native of France, was thirty-six years old when the contract was entered into. She had been married in France to one Maurice Duran and divorced there at some time before 1914. On August 27, 1919, she was married in this country to one Samuel French, a captain in the United States Army, and they went to Coronado, California, where they lived together until late in 1924. In August, 1925, the testator, who had been in poor health for several years and had gone to Coronado for his health, was living in a hotel
The contract upon which the plaintiff seeks to . recover was drawn by the plaintiff’s attorney at San Diego, California. On the same day the testator executed a codicil to his will, drawn by the same attorney, giving her a one-fifth part of his estate. On the following day the plaintiff made oath to her answer to a divorce petition filed by her husband. After the contract and codicil had been executed the plaintiff and the testator went to Houston, Texas, arriving there about September 25, and stayed at a hotel. On September 29 the divorce case was heard and an interlocutory judgment was entered in which the court found that all the allegations contained in the complaint were true and that a divorce should be granted as prayed for in the complaint. It decreed that when one year should have expired after the entry of the interlocutory judgment a final judgment should be entered granting a divorce. The interval of one year was required by a statute of California. The plaintiff testified that she heard the divorce had been granted by a telegram sent her by her attorney while she was on the train with the testator on their way to Houston; that she afterwards received a letter from her attorney to the same effect; that a few days after arriving in Houston at the testator’s request she called in Clarence A. Teagle, a lawyer in Houston,
At the conclusion of the evidence the defendant presented a motion for a directed verdict which was denied
Before the agreement was entered into by the parties a lawyer had been consulted; on being informed by them what they desired to accomplish, he drew the agreement, read it to them, and, after discussion of its provisions, it was executed. At the outset it recites that the defendant’s testator was “of the age of seventy-two years, a widower and has lost one of his five children by death and is desirous of having the second party [the plaintiff] become a member of his household and a companion to him and in so far as possible take the place of such child in the heart and life of said first party [the defendant] ”; that “the second party has because of marital difficulties separated from her husband and an action to terminate the marriage relations between the second party and her said husband has been brought by such husband and is now pending.” It is further recited that “in consideration of the second party during the balance of the term of the natural life of said first party, accompanying said first party and becoming a member of his household, conducting herself as a dutiful and loving daughter toward the first party, becoming a companion to first party, nursing, caring for and otherwise giving to first party the loving care of a daughter, all of which services and acts the second party hereby agrees to do and perform during the whole of such ' time, the said first party hereby agrees to keep and provide for said second party in a manner worthy of his daughter and in that behalf to pay all of her clothing, living, traveling and other expenses,” including other expenses therein specifi
It is manifest from the agreement that the purpose which the parties sought to establish was the relationship of father and child, the plaintiff on her part agreeing to conduct herself as a “dutiful and loving daughter” and to give to the defendant’s testator “the loving care of a daughter” during the remainder of the term of his natural fife, in return for which the defendant’s testator agreed during his lifetime to keep and provide for the plaintiff in a manner worthy of his daughter, and upon his death to give to her an undivided one fifth of his entire estate, she thereby receiving the same share therein as she would receive were she his daughter by birth and he had died intestate. The obligations so incurred were interdependent and concurrent. The obligation of the plaintiff to maintain the relationship of a daughter to the testator, to conduct herself as a dutiful daughter, and to give him the care of a daughter was to continue only so long as he provided for her in a manner worthy of his daughter. The obligation of the testator to pay these expenses and to provide for the plaintiff in a manner worthy of his daughter was to continue only so long as the plaintiff maintained the relationship of a daughter and conducted herself as a dutiful and loving daughter and gave him such care. Whenever this relationship should terminate, whether by mutual consent,
The undisputed evidence shows that on September 29, 1925, eight days after the agreement had been entered into, an interlocutory judgment was filed in the Superior Court in the county of San Diego, in which it was decreed that the plaintiff’s husband was entitled to a divorce against her, and that a final judgment or decree should be entered at the expiration of one year. The plaintiff was informed of the entry of this decree before October 2, 1925, the date she and the defendant’s testator went through the ceremony of marriage at Houston, and eleven days after the contract in question was executed. This purported marriage and their subsequent living together as husband and wife were wholly inconsistent with the relationship provided for in the contract of September 21, 1925. Although the purported marriage was unlawful, it is plain that the plaintiff and the defendant’s testator entered into it voluntarily, and that any rights she previously had under the agreement were abandoned by the parties. The relationship of the plaintiff and the defendant’s testator, who continued to five together as husband and wife after October 2, 1925, until he left her on November 8, 1925, was unlawful. The agreement was intended to establish the relationship of father and daughter, otherwise such recitals would have been wholly unnecessary and meaningless.
It is argued by the plaintiff that the contract was one which involved merely the plaintiff’s services as a nurse and companion and that the marriage ceremony between the parties at Houston is not a bar to recovery in this action. This contention loses sight of the fact that the agreement provides not only that she should become a member of his family, but that she should conduct herself “as a dutiful and loving daughter” and render to him “the loving care of a daughter.” When she went through a marriage ceremony with him and thereafter they lived together until November 8, 1925, they mutually terminated as matter of law the relationship contemplated by the contract. The changed relation between the parties on and after October 2, 1925,
It further appears that after the defendant’s testator separated from the plaintiff she applied for alimony in a French court, thereby relying upon a valid marriage with him. On July 21, 1926, her attorneys entered their appearance in the matter of the probate of the will of Richard S. Stearns; this must have been predicated upon her claim that she was his widow. After the present action was brought, the plaintiff, on March 5, 1928, wrote a letter to the Probate Court in which she stated, “I am his widow, Louise L. Stearns, now living in France.” The letter was signed “Louise L. Stearns.” It thus appears that the plaintiff claimed in the courts of France to be the wife of the defendant’s testator; and after his death she claimed to be his widow.
The uncontradicted evidence shows that before the parties left Houston and after the agreement of September 21, 1925, was made, the defendant’s testator executed a will which specifically revoked all prior wills including the codicil executed in San Diego in accordance with the agreement of September 21, 1925. This will specifically recites that it is made in contemplation of his marriage with the plaintiff, and that the gift therein to her was “in consideration of her care and attention heretofore given” him. It provided for an entirely different disposition of his estate so far as the plaintiff is concerned. It did not give her one fifth of his estate, but gave her a life interest in one half. She testified that she knew of the execution of this will, that she was present when the details were discussed by the testator with the lawyer, and that she made suggestions for the protection of her interests. Under such a will her bequest would be somewhat similar to what she would receive as widow if there were surviving children; while the disposition under the codicil previously executed is the exact amount that one of five children might naturally expect to receive. Accordingly the parties must have realized and understood that the con
It is plain that upon the evidence most favorable to the plaintiff the action cannot be maintained. The exception to the refusal of the trial judge to direct a verdict for the defendant must be sustained. Therefore it is unnecessary to consider any other exceptions saved by the defendant. In accordance with the report judgment is to be entered for the defendant.
So ordered.