123 Wis. 538 | Wis. | 1905
Several questions are presented by appellant’s counsel for consideration. An affirmative answer to •either of them will be sufficient to condemn the complaint on ■one of the grounds of demurrer insisted upon. We will state ■verbatim, or in effect, each of counsel’s propositions, and consider the same.
The first answer thereto is, the complaint is entirely silent ■as to whether the plaintiff is or is not a married woman. Appellant’s counsel assume, because the bond recites that the bastardy proceedings were agreed to be discontinued in consideration of an agreement on the part of defendant, William Meyer, to mate the plaintiff his wife, that such agreement was consummated. That does not follow. If the marriage agreed upon occurred it is very strange that counsel omitted to plead it in some way. The second answer to the question is, conceding that plaintiff is a married woman, the beneficial right under the bond is her sole and separate property in regard to which she is expressly authorized by statute to sue in
Tbe answer to tbat is, if it be true that respondent only has a beneficial interest in tbe bond, while tbe legal right to sue on it is in the county judge, tbe error in proceeding upon, an inconsistent theory goes to tbe cause of action, not to a defect ■of parties plaintiff. If, as appellant contends, tbe bond in ■effect runs to tbe county judge as trustee of an express trust, then, of course, be is tbe bolder of tbe legal title to tbe trust fund,- — is tbe proper party to sue to recover tbe same and without joining with him tbe respondent. Sec. 2607, Stats. 1898. A cestui que trust cannot sue to enforce a trust, except in case of necessity, by reason of failure, or refusal, or inability of tbe trustee to perform his duty in tbat regard. In tbat case tbe trustee is a necessary party, and a failure to make him such renders tbe complaint open to attack for defect of parties. Obviously tbe pleader did not proceed on tbat theory as tbe complaint is silent as to any reason why the ■action was brought in tbe name of tbe cestui que trust.
On tbat subject several points are made by counsel. •
(a) No cause of action is stated in favor of tbe plaintiff or any one because tbe legal title to proceed upon tbe bond, if there be any, is in tbe county judge. We see no escape from tbat proposition. Tbe meaning of this language is unmistakable:
“In case of failure of said William Meyer, principal, and Andrew Meyer, surety, to support tbe said Gertrude Meyer and tbe said family, they each and severally agree to pay to*544 tbe county judge of Waupaca county, aforesaid, tbe sum of five hundred dollars, or so much thereof as may be necessary,” etc.
The evident purpose of the instrument was to make the-county judge the trustee of the fund mentioned therein, with the right to call the same in for disbursement for respondent’s benefit, as in his judgment that might be deemed proper. The whole sum of $500 was not promised to be paid absolutely, but only “so much thereof as may be necessary, to be used for the support of said Gertrude Meyer ” etc. To be used by whom ?. By the county judge, manifestly. Therefore he was not only expected tty ask for, receive and recover the fund, but active duties on his part of a discretionary character were contemplated, viz.: To determine the amount and manner in which the fund should be used for the benefit of respondent.
Few principles are better understood than the one above adverted to, viz.: That the trustee of an express trust only can sue to defend or recover the trust fund, except where he neglects or refuses to perform his duty in that regard, and then the cestui que trust may sue, joining the trustee as plaintiff or defendant, as the case may require. As plaintiff, generally speaking, but when he is adversely interested or refuses to let his name be used, then as defendant. Since there is no allegation in the complaint, as before indicated, as to why respondent instituted the litigation, the complaint is fatally defective. The fact that she is beneficially interested in the execution of the trust does not, by any means, make her the real party in interest, within the meaning of the statute. In contemplation of law the trustee of an express trust is primarily the interested party. Before the Code he could sue in his own name, joining the cestui que trust. By force of the statute he is the proper party to bring the action, without joining, those secondarily interested.
We may well suggest, for all that is stated in the complaint, there was no marriage. Moreover, by sec. 2341, Stats. 1898, a married woman does not, by entering into the matrimonial contract, lose to her husband the property she then possesses, or any part thereof. Counsel for appellant suggest that the word “property” as used in such section does not include a beneficial interest in a trust fund of the nature of the one in question because it does not fall within the restricted meaning of such word, given thereto in Gibson v. Gibson, 43 Wis. 23. There the court said that property, under the married women’s act, refers only to “things which may be held, used, assigned, conveyed and devised.” The force counsel attribute to the quoted expression is in the use' of the conjunctive, suggesting that nothing is property, within the meaning of the statute, unless it has all the characteristics named, — unless, in thp hands of the person possessing the same, it is susceptible of being “held, used, assigned, conveyed and devised.” We may safely say there was error in thus joining the terms by the conjunctive. Things that may be held and enjoyed are no less property because they can-not be by the possessor “sold, assigned and devised.” Substitute the disjunctive for the conjunctive in the language relied upon and it will then doubtless express the idea the court intended to convey. That seems clear upon reading the opinion on rehearing, by Ryaw, Chief. Justice.- It is there distinctly held that the term “property” in the section under consideration includes everything covered by that term according to the. statutory construction thereof in sec. 4972, — that it includes money, goods, chattels, things in action, evidences of debt and real property, but not a mere right of action, as for instance one to recover compensation for damages for defamation of character, — to recover something which when obtained will
(c) The bond is against public policy.
So far as that suggestion is based on the theory that the instrument was given to secure immunity from prosecution for the crime of seduction, it needs no attention since it clearly appears not only by the instrument, but by the allegations in regard thereto, that the consideration thereof was the settlement of respondent’s claim against her par-amour in a bastardy proceeding, which by the policy of the statute is one proper for settlement by contract involving the discontinuance of the prosecution instituted by the woman. Sec. 1582, Stats. 1898.
True, the section referred to entitles the accused person in such a proceeding to his discharge only upon doing something more than merely to satisfy the demands of the prosecutrix, but that does not militate against her abandoning the proceedings, so far as she can, in consideration of receiving satisfaction from him.
A bastardy proceeding is neither a civil nor criminal action, strictly speaking, but is a mere statutory proceeding designed, primarily, to enable the injured female to recover of the person who, in the eye of the law, has committed a grievous injury to her, compensation therefor. Baker v. State, 56 Wis. 568, 14 N. W. 718; Id., 65 Wis. 50, 26 N. W. 167; Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735; Barry v. Niessen, 114 Wis. 256, 90 N. W. 166. In Pierstoff v. Jorges, supra, it was insisted that equity should not lend its aid to coerce the defendant into paying a judgment rendered S' gainst him in a prosecution for bastardy because the prose-
“The action is not in effect a criminal prosecution, but one instituted by the mother as a proceeding to enforce the father’s natural obligation to support his child, and for the benefit and protection of the mother.”
In view of the foregoing the contention that the agreement in suit is void, as against public policy, clearly has no merit whatever. The provision of the statute requiring official approval of the settlement with the mother as a prerequisite to the right of the accused to his discharge, was designed for the protection of the injured female,-not of the public. The purpose was to prevent the accused from intensifying the injury already inflicted upon the mother by inducing her to agree to an improvident settlement. However, a settlement, made by the accused, without such approval, is a waiver by him of the statute, and also by the woman, so far as she is competent in that regard. In any event it is no violation of public policy that can be invoked by the accused to defeat his agreement.
In Knight v. Priest, 2 Vt. 507, a settlement was made substantially as in this ease. The mother agreed that the accused should be prosecuted no further. He was prosecuted, nevertheless, by the town and compelled to give bonds. The point was made in a suit upon the note given by him in settlement of the mother’s claim that the consideration therefor had failed. The defense was rejected, the court holding that it was competent for the woman to settle with the wrongdoer for the injury to her, and that her agreement not to further prosecute him was no more than one that she would not fur-
Such settlements, as has well been said on many occasions, are not only dictated by the highest sentiments of honor and duty but are in entire harmony with the policy of the statute. They recognize not only a legal, but a high moral obligation on the part of tho wrongdoer to repair as far as practicable the injury done by him and should be, and are, viewed by courts with high favor, rather than disfavor, as the following citations will abundantly show: Coleman v. Frum, 4 Ill. 378; Robinson v. Crenshaw, 2 Stew. & P. (Ala.) 276; Merritt v. Flemming, 42 Ala. 234; Nicewanger v. Bevard, 17 Ind. 621; Haven v. Hobbs, 1 Vt. 238; Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. 812; Davis v. Moody, 15 Ga. 175; Comm. v. Turner, 4 Dana, 511; Burgen v. Straughan, 7 J. J. Marsh. 583; Comm. v. Davis, 6 Bush, 295; Baker v. Roberts, 14 Ind. 552; Black Hawk Co. v. Cotter, 32 Iowa, 125; Maxwell v. Campbells, 8 Ohio St. 269; Kezartee v. Cartmell, 31 Ohio St. 522; Hook v. Pratt, 78 N. Y. 371; Holcomb v. Stimpson, 8 Vt. 141.
A few quotations from the cited cases will strongly emphasize what has been said. In Robinson v. Crenshaw, supra, it was strongly urged that the settlement was contrary to public policy, and the court said:
“The principal in the note admitted himself to be the despoiler; and as such bound to repair the injury, at least, in part. Then, could there be anything illegal or contra bonos mores, after the perpetration of the vice, in contracting to divide the additional expense and make partial remuneration for the injury, by providing a more ample support, than the mother otherwise had, for the innocent offspring*? The case would be entirely different, had the contract been made, in consideration of any illegal or immoral act, to be done in the future — such are admitted to be void; law, and public policy, imperiously require they should be so, in order to discourage them. But not so, with regard to what has already passed; a sense of honor and justice may prompt a man to contract atonement for his wrong!’
“Whore a man is hound in honor and conscience, God for-hid that a court of law should say the contrary: and whenever it appears that the man is the seducer, the bond is good.”
In Coleman v. Frum, supra, yhere -a bond was involved, as in this case, and in-an action to enforce it the point was made that it was void because based upon an illegal consideration, the court said:
“We can perceive no objection to the legality of this contract. The statute authorizing the proceedings before the justice, was intended to enable the mother of an illegitimate child to compel the father to contribute to its support. When, therefore, he acknowledges his obligation, and for the purpose of obviating the trouble and expense o-f legal proceedings, voluntarily stipulates to do that which, he might by law be compelled to do, tire ends of justice are attained, and the objects of the law are accomplished byugiforeing his undertaking.”
In Jackson v. Finney, 33 Ga. 512, a similar case, the court said:
“Forbearance by the mother to prosecute the putative father of bastard children under the bastardy laws of this state, constitutes a sufficient consideration to support a promise by such father, to-pay money" or settle property for the benefit of such offspring.”
In Comm. v. Turner, supra, Chief Justice Bobiitsoh", delivering the opinion of the court, said:
“She [the mother] is neither under any civil or moral obligation to institute such a proceeding, nor is guilty of any breach of public or social duty by agreeing with the father for a conventional contribution, in lieu of the statutory remedy for coercing him.”
The court held that such a settlement is valid notwithstanding the public are not precluded from prosecuting the wrongdoer, if he fails to perform his duty, concluding thus:
“Then let such men make their contracts, and perform them too. But let them also know that, if their illegitimate children are not properly maintained, the law still has power to*550 coerce adequate contributions from those whose natural and legal duty it was to make them -without solicitation or coercion ; and that, whatever they do or agree to do by voluntary contract, they depend altogether upon the honor and fidelity and personal responsibility of those with whom they negotiate. Such contracts, if fair, are not illegal.”
In Maxwell v. Campbells, supra, in condemning a defense to an action to enforce notes given in compromise of a bastardy proceeding upon the ground of illegality, the court said:
“And had there never been any prosecution in this case, and, without the pressure of a prosecution, the defendant had voluntarily come forward and executed these notes, they would have been, as they are now, good in law, because based on the consideration of not only a moral, but also1 a legal obligation to provide, to some extent, for the expenses and support of both mother and child.”
In Billingsley v. Clelland, supra, a similar case, a large number of authorities being reviewed, it was said:
“Was the compromise . . . contrary to public policy and good morals, and the notes sued on by reason thereof invalid? Whenever this question on similar notes has been fairly presented to a court of last resort, the uniform decision has been in favor of their validity, unless the compromise has been procured by fraud, or the notes include an obligation not to testify against the accused in a criminal prosecution.”
The case cited treats of a contract for a voluntary separation between husband and wife. We fail to discover any element of that kind in the agreement in question.
“The amount to be paid to her, if the same cannot be agreed upon by the parties hereto, shall be determined by the county judge and shall be furnished and paid in the manner and way he may designate.”
Why, in view of that plain provision and the absence of any showing that a cause of action _was perfected in harmony therewith, the demurrer was not only overruled but judgment was ordered for the full amount named in the bond, is not perceived. The quoted language ahd'dhe fact that the complaint-is entirely barren of any showing of compliance there; with, ,is sufficient to condemn it. -
By the Court.- — -The order is reversed, and the cause remanded with directions to enter an order sustaining the der murrer, and for further proceedings according to law..
