148 Mass. 39 | Mass. | 1888
The plaintiff’s wife had left him, and they were living apart. She had brought a petition against him for separate maintenance. The parties agreed to settle, upon the terms that the husband should pay a sum of money, and the wife should give a bond with surety to release dower in his estate when requested, and to make no further claim on him for support, or for any cause. The money was paid, and the bond was given accordingly. This action is against the surety on the bond. It was held in Winn v. Sanford, 145 Mass. 302, that it is no defence to the action that the principal in the bond is the wife of the obligee.
It is now objected that the bond is void, as against public policy. The petition by the wife was under a statute which recognized the status of separation of the husband and wife, and which gave to the wife a proceeding to enforce a right of separate maintenance. The wife was under no obligation to commence or prosecute proceedings, or in any way to assert her right to separate support from her husband. She could settle a pending suit, and she could release or discharge the right. As relating to the claims of the wife upon the property of her husband while the separation continued, we can see no objection to the validity of the agreement, and we are not called on to determine what its effect would be if the separation should be terminated or its character changed by future cohabitation of the parties, or offer of the wife to return to cohabitation. The validity and effect of this agreement to prevent the wife from
Subsequently, the wife made application to the Probate Court, under the statute, and procured a decree for the payment of money for her support, which was reversed in this court on appeal. This suit is for moneys which the husband was obliged to pay on the decree pending the appeal. It is immaterial that the reversal of the decree was by agreement of the parties. The husband was. obliged, on the demand of the wife, to pay money for her support while they were living apart under a valid agreement that she should make no claim upon him, and the condition of the bond was broken. The plaintiff was under no obligation to the defendant not to procure a divorce, or not to procure it by fraud and deceit, or to preserve the right of his wife to dower or to a distributive share in his estate. He was under no contract or obligation to the defendant to see that the principal in the bond should have the means of indemnifying him out of the plaintiff’s property or otherwise. We see no error in any ruling, or refusal to rule, of the court.
Exceptions overruled.
