Loomis v. Loomis, 35 Barb. 624

Loomis v. Loomis

35 Barb. 624 | N.Y. Sup. Ct. | 1862

By the Court, Balcom, P. J.

The only material question in this case is whether the defendant, as executor of Hezekiah Loomis, deceased, was bound to provide the plaintiff “a good and sufficient maintenance,” at any place other than in his own house or in that of Orlando Loomis.

The plaintiff was bound by the marital tie to live with her husband wherever he resided during his life; and the ante-nuptial agreement did not require him to support her else*627where. But neither the agreement itself, nor any surrounding circumstances, indicate that the plaintiff was to he maintained at any particular place after the decease of her husband. Her husband was under no obligation to make a will; and he could have devised his estate to strangers, subject to the right of the plaintiff to have her support out of it, and appointed an executor who had no interest in it. The will he made is silent as to where or how the plaintiff should be maintained. In Pool v. Pool, (1 Hill, 580,) the defendant’s covenant was to “keep and maintain” the plaintiff’s two infant children until they should respectively arrive at the age of twenty-one, “in a manner suitable for the plaintiff to provide for them in case he should live and had not conveyed away his propertyand it was held that the defendants were only bound to provide for the infants as members of their families. In Hawley v. Morton, (23 Barb. 255,) the condition of the bond given to the plaintiff by the defendant was, that the obligor should, from time to time and at all times during the life of the obligee, well and sufficiently maintain and keep the obligee in the house of him, the obligor, with meat, drink, clothes, and all other things necessary and convenient; and it was held that the defendant was not bound to clothe or board the plaintiff any where except in his own house. In Converse and others, Superintendents of the Poor, v. McArthur, (17 Barb. 410,) the court of sessions had made an order that the defendant should support his mother at his own house, or in default thereof he should pay so much per week. He supported her at his house about one year, and then she left him without any just cause. And the court held, the defendant was not liable for the sujDport of his mother after she left his house. The case of McKillip v. KcKillip (8 Barb. 552) is nearer like this than either- of those I have mentioned; but if it was correctly decided, I think it is distinguishable from this. In that case the obligor was bound to maintain, support and clothe Archibald McKillip (the obligee) and his son James, who was ill and *628deprived of Ms reason, during their natural lives, and during the natural life of the longest liver of them, and furnish good and sufficient nursing and medical attendance, washing and lodging, both in sickness and health, for each of them during the term aforesaid; and the court held, that the obligor was only bound to maintain and support the obligee and his son, at ,his own dwelling house; provided it could there be done in a suitable manner, which would be presumed ; and that after the decease of the obligor, the family residence, so long as it should be maintained, was the place of support. It will be observed, the bond in that case was not only that the obligor would maintain and support the obligee, but also his crazy son James, who could not elect how or where he would be supported or kept. And I think the tenor of the bond in that case, in other respects, differs from the agreement in this. I therefore need not say whether I think that case, so far as it bears upon this, was correctly decided.

In this case the deceased bound himself, his administrators and executors, “to give the said Amy Palmer (the plaintiff) a good and sufficient maintenance during her natural life.” In other words, he covenanted to provide such a maintenance for her. In Tolley v. Greene (2 Sandf. Ch. Rep. 91) the testator used this language, viz: “It is my will and order that my beloved wife Eebecca have a decent and comfortable support and maintenance out of my estate, in sickness and in health, during her lifetime, in lieu of her dower right which she might claim out of my estate.” A son of the testator was his sole executor. After the decease of the testator and his executor, a suit in equity was brought by the widow to have a sufficient sum set apart from the estate of the testator, and secured for her support and maintenance during her life, according to the bequest in the will. Her husband left only two children who took some $35,000, subject to her support. The assistant vice chancellor held she was entitled to be supported and maintained in housekeeping, in a plain and *629economical manner, at the place of her residence; and directed that she should have $600 a year secured to her for that purpose.

[Broome General Term, January 28, 1862.

I know of no adjudged case at all analogous to this, except those to which I have alluded; and neither of them, nor any legal or equitable principle, that I am aware of, requires us to hold that the plaintiff should live with the defendant or be supported at any particular place designated by him. And if the deceased was a wise man and loved the plaintiff when he married her, he could not have desired or intended she should live in the family of his executor, against her wishes, or at any other place where she would not be contented, after his disease. But I need not attempt to show how unhappy widows often are, who are compelled to live with devisees or legatees, or children or step-children, whose interests are that the days of their beneficiaries “should be dwindled to the shortest span.” This case requires nothing of the kind. The agreement in question does not compel the plaintiff to live at any particular place, or give the defendant, as executor, any control over her choice of a residence. I think the referee was right in holding that the plaintiff could choose her place of residence. She was and is entitled to “a good and sufficient maintenance;” which is, such board and clothing, and other support, as her husband provided for her during his life; for it will be presumed, without proof to the contrary, that was suitable to her condition. And as the referee has only allowed her for that, or in other words, has only required the defendant to make her compensation for that during the period which he refused to provide the same for her, unless she would live with him, or Orlando Loomis, his decision was correct; and the judgment entered thereon should be affirmed with costs.

Decision accordingly.

Balcom, Campell and Parker, Justices.]