257 Mass. 232 | Mass. | 1926
This is a petition for separate support, brought in the Probate Court for Hampden County. It was found that the petitioner and respondent were married in 1906 and have two children; that the respondent deserted the petitioner in October, 1923; that the desertion still continues; that the respondent brought a libel for divorce against the petitioner. See Holt v. Holt, ante, 114.
On November 1, 1923, an agreement in writing was made between the respondent, party of the first part, Paul M. Lewis party of the second part, and the petitioner, party of
The judge found that the three parties, in executing the instrument, intended to accomplish the results contemplated by it, Lewis joining the others, in effect, though not stated in words, as trustee, to make the agreement valid; that all that was done relating to the instrument in writing was free from fraud; that the arrangement was reasonable, and that all payments were made to June 1, 1926. A decree was entered in the Probate Court that the petitioner was living
The agreement was enforceable, and on the facts found was a bar to this proceeding. Lewis was not mentioned as trustee, but he was one of the parties to the agreement and was, in effect, a trustee. The agreement in the fourth parar graph purports to be an agreement on the part of the husband to pay the wife, but it is not in terms stated to be an agreement with the wife. It is, in effect, an agreement with Lewis as trustee for the benefit of the wife, and enforceable by him. Bailey v. Dillon, 186 Mass. 244. Terkelsen v. Peterson, 216 Mass. 531. Kerr v. Kerr, 236 Mass. 353. In Terkelsen v. Peterson, the plaintiff was not named as trustee, but joined in the agreement in effect as trustee for the wife, for the purpose of enforcing the arrangement made. That case governs the case at bar. The respondent had deserted the petitioner when the agreement was made. Bailey v. Dillon, supra. Terkelsen v. Peterson, supra. The petition was dismissed properly.
Decree affirmed.