1. A covenant by a husband for the maintenance of the wife,
contained in a deed of separation between them, through the medium
of trustees, where the consideration is apparent, must now be
regarded on authority as valid, notwithstanding the serious
objections to such deeds. It will accordingly be enforced in equity
if it appear that the deed was not made in contemplation of a
future possible separation, but in respect to one which was to
occur immediately or for the continuance of one that had already
taken place. And this especially if the separation was occasioned
by the misconduct of the husband, and the provision for the wife's
support was reasonable under the circumstances, and no more
Page 76 U. S. 744
than a court before which she was entitled to carry her
grievances would have decreed to her as alimony.
2. The validity of such a covenant is not impaired by the fact
that the deed contains a provision that if the parties should
afterwards come together, the trust should remain and be executed
in like manner as if they should remain separate.
3. A husband may be chargeable as trustee with the income of his
wife's separate property, and if he have received it from her to
invest it for her, and have not invested it, he will be so charged
at her suit, whether the income be of property which he has settled
upon her, or be income from some other separate property of
hers.
4. The federal courts where they have jurisdiction will enforce,
for the furtherance of justice, the same rules in the adjustment of
claims against ancillary executors that the local courts would do
in favor of their own citizens.
5. A widow, by being a mere formal party to a deed of compromise
between the heirs-at-law of a decedent and his residuary devisees,
by which a specific sum is given to the former and the residue of
the estate to the latter, does not estop herself from coming upon
the estate with a claim for separate moneys of hers, received by
her husband to invest for her, but which he did not so invest, she
having done nothing to conceal her claim from the residuary
devisees, and the "residue" which the heirs surrendered having been
a residue after the proper settlement of the estate.
6. Nor does she estop herself from asserting such a claim
against her husband's executors, by her acceptance of a provision
under his will which makes a limited provision for her, to be
received, with income under a certain trust deed, in satisfaction
of dower.
7. The view of the court below upon an ancient item of account,
somewhat obscure, and where there was but little evidence, not
disturbed.
8. The estate of a husband, who had maltreated his wife and
obtained from her the income of her separate property under a
promise to invest it for her, but who did not so invest it, charged
after his death with interest, compounded annually, through a long
term of years, and deprived of all commissions for services as
trustee.
In September, 1845, Dr. William Walker, then a citizen of
Charlestown, Massachusetts, without cause, compelled his wife and
two of their children to leave his house. Before this time he had
treated his wife with great harshness and cruelty, proceeding so
far as to inflict personal violence on her. This conduct entitled
his wife, by the laws of Massachusetts, to a decree of divorce from
bed and board, and for
Page 76 U. S. 745
a proper allowance of alimony, and, with a view to obtain these,
she applied to counsel to take legal proceedings against her
husband. On learning this, Dr. Walker sought the advice of his
friend, Uriel Crocker, and requested him to confer with a lawyer on
the subject. This friendly service was performed by Mr. Crocker,
and the conference resulted in recommending the husband to settle
on his wife $50,000, and that articles of separation between them
be executed. It was considered that the sum agreed on was a
suitable settlement under the circumstances, as nearly the same
amount had been obtained by Dr. Walker from the estate of his
wife's father and as Dr. Walker was, independently of this, a
person of fortune his estate at the time having been between three
and four hundred thousand dollars.
The parties adopted the recommendation of Mr. Crocker and his
conferee, and on that basis the articles of separation were drawn
and executed. By these articles, Dr. Walker transferred to
trustees, in trust for his wife, the amount of property agreed upon
and directed the income to be paid to her during her life. This
transfer was, however, on the express condition that Mrs. Walker
should release her possibility of dower, when asked to do so, to
all the real estate which he should sell during his lifetime, and
if she survived him, that she should release her right of dower to
his entire estate. The trustees on their part covenanted to
indemnify the husband from all payment of alimony thereafter, and
the deed contained a stipulation that if the parties should
afterwards come together, the trust should remain and be executed
in like manner as if they should live separate.
The parties continued to live apart after the execution of these
articles, until the month of April, 1846, when Mrs. Walker returned
to her husband at his request, and again for a certain time lived
with him.
The main controversy in this case grew out of transactions which
occurred after Mrs. Walker thus returned to her husband's
house.
The money was admitted to have been always paid by the trustees
into Mrs. Walker's own hands. And that in
Page 76 U. S. 746
September, 1846, when the first payment after her return to her
husband's house was due under the deed of trust, Dr. Walker went to
Mr. Crocker, the managing trustee, with an order for the money from
his wife, and stated that she had agreed that he should invest the
amount for her, with the sum of one thousand dollars previously
paid to her at Crocker's request.
As to the rest of this part of the case -- assuming that the
testimony of a daughter, Miss Emily Walker (by whose testimony the
facts in regard to it were in a considerable degree sought to be
established), could be relied on -- the facts were these:
On the occasion of a second payment, which was made to the wife
in person, as were the rest, Miss Walker testified that her father
wished her mother to give him the money unconditionally, saying
that she had no need of it now that she was in the house with him,
and that all her wants were supplied; but the request was declined.
The subject was discussed between the parties for several days, and
finally Mrs. Walker surrendered the checks for the money, on the
promise of her husband to invest them for her at the time he
received them. The same discussion ensued when the next payment was
made, and the same struggle occurred on the part of the husband to
get the money from the wife without any promise, and with the same
result -- on agreement by him to invest it for her. The discussion
and struggle were renewed on the occasion of the receipt by the
wife of the third payment, and was ended by the husband promising
the wife to invest the check then on hand, and all future checks
which he should receive from her, for her benefit. After this,
there was quiet in the family, and Mrs. Walker, relying on her
husband's promise, paid to him, while she remained in his house,
the successive checks as they were received from the trustee. In
1855, Dr. Walker was taken ill. His daughter, already named,
testified as to what took place during this illness as follows:
"He said that he was very ill; that he could not live many
Page 76 U. S. 747
weeks, perhaps not many days; that there were some things which
he had neglected to attend to; that this neglect troubled him a
great deal. He had neglected, he said, to invest the money which he
had received from my mother, which she had received from the
trustee, Mr. Crocker; that he had intended to invest it; that the
difficulty with him had been to find a safe investment; that it was
her money, and all she had; that it would not do to risk anything
with it. This he said to me, not once but many times."
The witness was sharply cross-examined, and otherwise attempted
to be discredited, but nothing was said by her, or shown by others,
to bring into doubt her original statement.
At another time -- having previously requested Crocker to defer
the payment of a sum of money then due to his wife on account of
his apprehension that she would be unwilling to have it invested
for her, as he wished to do -- he desired Crocker to go to his
house and pay his wife the money, as he had a good chance to invest
it. In fact, the whole evidence made it clear that Dr. Walker
received the income of his wife's estate from her hands on the
condition that he would invest it as received for her benefit, and
that he agreed to this condition.
Mrs. Walker lived with her husband until June, 1860, when she
again abandoned his house on account of his cruel treatment of
herself and their daughters, and remained away from him during the
residue of his life.
After the separation in June, 1860, Dr. Walker went to reside in
Newport, R. I., and died there in 1865, leaving more than
a million of dollars of estate, and a will, which, after setting
aside $180,000 in trust, to secure from the income to his wife,
with the rents of the $50,000, settled in 1846, an annual income of
$3,000, and to his children the remaining income, and after various
legacies, including that of most of his silver plate between his
wife and daughters, left the residue of his estate to literary and
scientific institutions. The provision made by his will for his
wife was declared by the will to be "in full and in lieu of her
dower."
Page 76 U. S. 748
Letters testamentary were granted on Dr. Walker's estate in
Rhode Island; but letters ancillary were also granted in
Massachusetts, where he had a large amount of personal property as
well as in Rhode Island.
The granting of letters testamentary upon Dr. Walker's estate
was opposed by his heirs-at-law, and after the grant of the
letters, they threatening to seek to have them vacated, a
compromise was effected, and a deed executed accordingly between
the heirs and the residuary devisees by which the former released
to the latter, after the payment to themselves of a considerable
sum of money, the residue of the estate, after payment of all debts
and just claims upon it. Mrs. Walker was a formal party to this
deed.
Mrs. Walker now, October Term 1865, filed a bill against her
husband's executors alleging a trust or investment as respected the
moneys which she had paid into his hands, and calling for an
account.
The executors, either by the answer or in the argument, set up
as defenses to the bill,
1. That the original article of separation, having been a
voluntary agreement of husband and wife to live
separately, was invalid, and the trust created by it of course
invalid also; that this especially was so as the instrument was
construed by the other side, for that this construction made it his
interest to oppose his wife's return to his house, since he would
have then both to support her and to let her have the separate
income also.
2. That as to the sums received from his wife, equity would not
make Dr. Walker a trustee for her; that if he could properly be a
trustee at any time, yet that during the cohabitation of the
parties, the trust was suspended; moreover that the evidence was
insufficient to show any intention to make himself such trustee in
fact; the bill not being filed until twenty years after the alleged
promises were made, and the evidence to support it being chiefly
that of the daughter, a witness naturally inclined to the mother's
side, and whose statements were largely colored by her opinions and
feelings.
Page 76 U. S. 749
3. That Dr. Walker having died in Rhode Island, and his will
having been proved there, this suit should have been brought there,
and not in Massachusetts, where it was brought.
4. That Mrs. Walker, having been a party to the deed of
compromise, was estopped from bringing this suit.
5. That by accepting the provisions of her husband's will, she
had waived all right to maintain a suit like the present one.
The court below sustained the bill, held Dr. Walker a trustee to
invest for his wife the income of the settled property received by
him from her, and referred the case to a master for an account. The
master charged Dr. Walker's estate accordingly, charging him also
interest compounded annually, but allowed him commissions as
trustee, $1,682.38. He also allowed his estate a credit of $2,400,
which was claimed by it in virtue of a receipt of his wife's,
thus:
"Out of the sum of 2,087 dollars and 97 cents which I have
received of the trustees as specified in their two first accounts,
I have refunded to my husband $1.500, fifteen hundred dollars,
being part payment of 24 hundred dollars, which he gave, at my
request and on my account, in equal proportion to my two sons, and
I agree that the like sum of 12 hundred dollars shall be given
successively to my other children, Frances, Kate, and Abby, in such
manner as may be agreed upon between me and my husband, as far as
the income or the trust property will allow, reserving to myself
the right to use as much of said income as I may need for private
expenses and any charitable objects I may wish to favor."
"ELIZA WALKER"
"BOSTON, March 27, 1847"
The circuit court affirmed this report, giving Mrs. Walker a
decree for $81,750.85, and Mrs. Walker appealed, asserting among
other things that not only was Dr. Walker entitled to no
commissions as trustee, but that his conduct was such as deserved
severe treatment, and that interest ought to have been compounded
semiannually.
Page 76 U. S. 750
MR. JUSTICE DAVIS delivered the opinion of the Court.
The bill here seeks to charge the estate of Dr. Walker, in the
hands of his executors, with a trust in favor of his widow. The
court below found that the trust existed and was valid, and this
appeal seeks to review that decision as erroneous.
Two principal questions are presented for consideration:
1st. Is the trust created by the articles of separation in this
case valid, and will a court of equity enforce it?
2d. Can a husband be a trustee for his wife, and if so, did Dr.
Walker constitute himself such a trustee or not?
It is contended that deeds of separation between husband and
wife cannot be upheld, because it is against public policy to allow
parties sustaining that relation to vary their duties and
responsibilities by entering into an agreement which contemplates a
partial dissolution of the marriage contract. If the question were
before us unaffected by decision, it would present difficulties,
for it cannot be doubted that there are serious objections to
voluntary separations between married persons. But contracts of
this nature for the separate maintenance of the wife through the
intervention of a trustee have received the sanction of the courts
in England and in this country for so long a period of time that
the law on the subject must be considered as settled. [
Footnote 1]
Page 76 U. S. 751
It is true that different judges, in discussing the question,
have struggled against maintaining the principle; but while doing
so, they have not felt themselves at liberty to disregard it, on
account of the great weight of authority with which it was
supported, and have therefore uniformly adhered to it. It is
unnecessary to consider whether the extent to which the doctrine
has been carried meets our approbation, nor are we required to
discuss the subject in any aspect which this case does not present.
It is enough for the purposes of this suit to say that a covenant
by the husband for the maintenance of the wife contained in a deed
of separation between them, through the medium of trustees, where
the consideration is apparent is valid, and will be enforced in
equity if it appears that the deed was not made in contemplation of
a future possible separation, but in respect to one which was to
occur immediately or for the continuance of one that had already
taken place. And this is especially true if the separation was
occasioned by the misconduct of the husband and the provision for
the wife's support was reasonable under the circumstances and no
more than a court, before which she was entitled to carry her
grievances, would have decreed to her as alimony. In this state of
the law on the subject it is clear the deed of settlement in
controversy was unobjectionable. It is equally clear that the
separation accomplished by it was the best thing for the parties at
the time, and that it ultimately led to a reunion which lasted over
fourteen years. The evidence shows that the bad conduct of Dr.
Walker to his wife justified her in leaving him and entitled her to
a legal separation at the hands of a court, with alimony in
proportion to the value of his estate. For many reasons which are
apparent without stating them, it was desirable, if possible, to
avoid a judicial investigation, and accordingly negotiations to
this end were commenced on the part of the husband which resulted
in
Page 76 U. S. 752
securing to the wife a suitable provision for her support. This
settlement was made by him, and accepted by her not only in lieu of
alimony, which she could have obtained, but also in place of dower,
and the covenant of the trustees against any future claim of
alimony, and their agreement that the wife's debts should be paid
out of the property conveyed to them, furnished the security to the
husband for the permanent arrangement contemplated by the parties.
If we consider that the value of the property transferred to the
trustees for the benefit of the wife was but little more than the
husband received in her right from her father's estate, and that at
the time he was worth between three and four hundred thousand
dollars, it would seem the provision for the wife's maintenance was
less than she had a right to demand and ought to have received. If
the law authorizes a wife to leave her husband on account of cruel
treatment and to get from him a competent support, it cannot
withhold its sanction to the articles of separation concluded
between these parties under the circumstances disclosed by the
evidence in this case. It is insisted the obligation of the trust
was discharged when the wife returned to her husband's house, but
this is a mistaken view of the effect of the instrument. It was the
intention of the parties that the arrangement should be permanent,
and to accomplish that purpose the agreement was framed so that the
wife should enjoy her separate estate during life, although she
should subsequently become reconciled to her husband, and cohabit
with him. We can see no valid objection to such a provision, and it
is certainly supported by authority. [
Footnote 2] The husband had a right to make a settlement
upon his wife without any view to separation, and the insertion of
this provision shows that he did not intend the settlement to cease
on the return of the wife to cohabitation. There is no good reason
why effect should not be given to the intention of the parties on
the subject. If, on grounds of public policy, it is desirable
that
Page 76 U. S. 753
the parties should be reconciled, whatever tends to promote such
a result will receive the favorable consideration of a court of
equity. Without this provision there was no inducement for Mrs.
Walker to return to her husband; with it, she could try to live
with him again, and if his previous bad treatment was repeated she
was fortified against the contingency of being turned away another
time penniless. There was nothing in his previous conduct to
inspire her with confidence in his subsequent good behavior, and
but for the fact that the means of support were secured to her in
case her life became intolerable with him, it is reasonable to
infer that she would never have ventured to cohabit with him after
the separation. It is clear, then, that this trust was operative
during the life of the wife and that a court of equity will enforce
it.
The next inquiry relates to transactions which occurred after
the wife returned to her husband at his request, and on which the
claim for relief in this case is based. That a husband may be a
trustee for his wife, and can be compelled in equity to account for
any money or property belonging to her which he has received, in
the same manner that a stranger would be held to account is a
doctrine so well settled that it hardly requires a citation of
authorities to sustain it. [
Footnote 3]
It makes no difference whether the property which he has
received was settled by him upon his wife or came to her through
other sources. If the property was her own separate and exclusive
estate and he has agreed to become her trustee respecting it, his
liability attaches and he will be charged with the trust. The
property settled upon Mrs. Walker by the articles of separation was
her separate estate, and to be enjoyed by her in the same manner as
if it had been conveyed to trustees for her benefit by settlement
before marriage. The income secured to her was not suspended by her
returning to live with her husband, on his
Page 76 U. S. 754
solicitation, nor had he any right to retain it by way of setoff
against the expense of her living. If for any cause he desired the
state of separation to cease and invited his wife to return, it was
his duty, as it should have been his pleasure, out of his abundant
means to have given her a decent support. What is the evidence
touching the question whether Dr. Walker constituted himself the
trustee for his wife in respect to the income derived from her
separate estate?
It is clear and uncontradicted that Dr. Walker received the
rents and incomes of his wife's estate from her on the condition,
to which he agreed, that he would invest them for her benefit as
they were received, and this agreement imposed on him the character
of a trustee as to this property. To hold otherwise would be to
sanction the grossest fraud. It is not necessary to create the
trust that the husband should use any particular form of words, nor
need those words be in writing. All that is required is that
language should have been employed equivalent to a declaration of
trust. That the words which Dr. Walker used constituted him the
trustee of his wife cannot admit of controversy. An attempt is made
to discredit the principal witness, by whom the important facts in
this case are proved, but it has wholly failed. Her narrative of
the occurrences which led to the separation, and of the
transactions out of which the trust arises, is intelligently given,
does not vary on cross-examination, and bears the impress of
truth.
It is insisted that this suit should have been brought in Rhode
Island, because Dr. Walker had his domicile in that state when he
died, and his will is proved there. But the will was also proved in
Massachusetts, where ancillary administration was obtained, and if,
as is conceded in such a case, the assets received and inventoried
by the executors there are liable to the claims of the citizens of
Massachusetts, the citizens of other states will be placed on the
same footing in this respect, in the federal courts sitting in
Massachusetts, where there is no suggestion of insolvency. The
circuit courts of the United States, with full equity powers, have
jurisdiction over executors and administrators, where
Page 76 U. S. 755
the parties are citizens of different states, and will enforce
the same rules in the adjustment of claims against them that the
local courts administer in favor of their own citizens. [
Footnote 4]
It is urged that Mrs. Walker is estopped from setting up this
claim because she was a party to the indenture of compromise. But
if so, she was only a formal party to it, received nothing under
it, and was not concerned with the residue of the estate, which it
proposed to adjust only after the debts, legacies, and liabilities
were paid. Having done nothing to conceal her claim, nor imposed
upon the parties to the compromise respecting it, she cannot be
considered as having waived her right to prosecute it.
But if this defense is overruled, it is nevertheless contended
that Mrs. Walker, by accepting the provisions of her husband's
will, waived her right to institute this suit; but this is giving
an effect to the acceptance not warranted by the terms of the will
or anything connected with the case. Dr. Walker in his will saw fit
to make a limited provision for his wife and to declare that it was
to be received, with the income under the trust deed, in full
satisfaction of dower in his estate. Nothing is said about the
other trust under which he received the separate property of his
wife to be invested, and it is hard to see how his estate can be
released from accounting for it, or the status of the complainant
affected, because she consents to take under the will what is given
her in satisfaction of dower.
It is objected that the executors are not liable to this suit
because it was commenced within one year after they gave bonds for
the discharge of their trust. [
Footnote 5] But this defense is not now open to the
respondents. To have availed themselves of it, it was necessary
that it should have been presented at the earliest stage of the
proceedings. In not doing so, they will be considered as having
waived their right to insist that the suit was brought too
soon.
Page 76 U. S. 756
The remaining questions in this case relate to the exceptions of
the parties to the master's report. In dealing with these
exceptions, it seems to us that all we are required to notice are
embraced in three different points of inquiry:
1st. Did the master err in allowing Dr. Walker $2,400, as a
deduction from the income of the trust property?
2d. Should the interest charged against the trustee be
compounded annually, or semiannually?
3d. Was the trustee entitled to any compensation for his
services?
The solution of the first inquiry depends on the effect to be
given to the receipt or memorandum signed by the complainant, dated
March 27, 1847. The complainant insists in the adjustment of the
account the master mistook the effect of the instrument, and that
he should have allowed as a credit against her $1,500 instead of
$2,400. It is not easy after this lapse of time to tell the exact
basis on which the accounts should be settled with reference to
this receipt. It was a memorandum made when the parties were living
in harmony, and after Dr. Walker had undertaken to invest for his
wife the first check delivered to him by her, and after her purpose
was manifest that the entire income of her estate should be
invested to provide against the contingencies of the future. And
yet this memorandum shows that she so far modified this purpose as
to authorize her husband to give for her $1,200 to each of her two
sons, and expressed the intention of making an equal donation to
her other children. The matter was probably adjusted between the
parties, and although there is no proof on the subject, the circuit
court doubtless, in approving this part of the master's report,
acted on the idea that by long acquiescence it should be treated as
having been settled. We cannot say that this view of the subject is
wrong, and the exception is therefore overruled.
2d. The next exception relates to the manner of computing
interest. That Dr. Walker acted in utter disregard of his trust is
too plain for controversy. He treated the money as his own, neither
kept nor rendered any account of his
Page 76 U. S. 757
trust, and his conduct throughout is irreconcilable with the
intention to perform his agreement. There is not a shadow of excuse
for his neglect. The reason assigned for it to his daughter, when
on his sick bed -- that he had not been able to find safe
investments for the money -- was the merest pretense. It could not
be otherwise, as he was an intelligent man of large wealth and well
informed on the subject of investing moneys. The condition of his
estate shows that he had abundant opportunities for profitable
investment on his own account, and if so, how can it truthfully be
said he could not find safe investments for the small sums in his
hands belonging to his wife? A court of equity, the especial
guardian of trusts, will not tolerate excuses of this sort on the
part of a trustee for omitting to discharge his duty to his
cestui que trust. There is therefore, no hesitation in the
Court to allow, in the adjustment of the trustee's account, the
interest to be compounded annually. It has been argued with
earnestness that this is a case for severe treatment, and that the
master should have allowed semiannual rests, but we are not at
liberty to discuss the subject, as the Court is equally divided in
opinion upon the question which it presents.
3d. The master was wrong in allowing any compensation to the
trustee for his services, and the exception taken to that part of
his report is therefore sustained. To hold that in a case like this
the trustee should be allowed compensation when he literally did
nothing towards executing his trust, but on the contrary was guilty
of the grossest abuses concerning it, would be a departure from
correct principle. The sustaining this exception renders a
modification of the decree in the circuit court necessary. That
court passed a decree in favor of the complainant for $81,750.85.
It should have been increased by the addition of $1,682.38, which
sum was deducted, in the account stated, for the trustee's
services. The decree of the circuit court is therefore modified on
the basis that the complainant, at the time it was rendered, was
entitled to recover from the respondents the sum of $83,433.23.
Page 76 U. S. 758
Interest will follow from the date of the decree, at the rate
allowed on judgments and decrees in Massachusetts.
[
Footnote 1]
Compton v. Collinson, 2 Brown's Chancery 377;
Worrall v. Jacob, 3 Merivale 266;
Jee v. Thurlow,
2 Barnewall & Creswell 546;
Webster v. Webster, 1
Smale & Gif. 489;
S.C. 23 English Law and Equity 216;
17
id. 278;
Randle v. Gould, 8 Ellis &
Blackburne 457;
Carson v. Murray, 3 Paige 483;
Nichols
v. Palmer, 5 Day 47;
Hutton v. Duey, 3 Barr 100;
Bettle v. Wilson, 14 Ohio 257;
Chapman v. Gray, 8
Ga. 341;
Reed v. Beazley, 1 Blackford 97;
Wells v.
Stout, 9 Cal. 494;
Dellinger's Appeal, 35 Pa. 357;
Gaines v. Poor, 3 Metcalf (Ky.) 503;
Hunt v.
Hunt, judgment by Lord Westbury in 5 Law Times Rep. 778.
[
Footnote 2]
Wilson v. Mushett, 3 Barnewall & Adolphus 743; Bell
on Husband and Wife 525-541.
[
Footnote 3]
2 Kent 163, and cases cited; 2 Story's Equity § 1380;
Neves v.
Scott, 9 How. 212;
Woodward v. Woodward, 8
Law Times Rep., N.S. 749;
Grant v. Grant, 12
id.
721.
[
Footnote 4]
Green's Admr. v.
Creighton, 23 How. 90;
Harvey v. Richards,
1 Mason 381.
[
Footnote 5]
See Gen Statutes of Mass., c. xcvii, § 16.
