
    Bainbridge S. Clark, as Trustee, etc., Resp't, v. C. Baldwin Fosdick et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 10, 1889.)
    
    Divorce—Does not aeeect provisions oe previous separation.
    By the usual articles of separation Jennie P. Fosdick and the defendant, C. Baldwin Fosdick, were to live separately. The husband and his father to" pay her trustee $8,500 for the support of the wife and her two children during her life, or until she re-married, or $3,000 in case the children died. Subsequently the wife obtained an absolute divorce in Rhode Island, which gave her the custody of the children. In an action by the trustee for an installment of the allowance, Held (1), that plaintiff was the proper party plaintiff; that the separation agreement was valid; that the divorce did not affect the agreement of separation, which is capable of enforcement by any of the parties to it by all proper means.
    (Follett, Oh. J., dissents.)
    This is an appeal from the judgment of the court of common pleas of the city of New York, affirming a judgment of the city of New York, Brought into this court by permission.
    Jennie P. Fosdick intermarried with the defendant, C. Baldwin Fosdick, on the 11th day of April, 1878, and thereafter lived together as husband and wife until the 14th of February, 1888. Then unhappy differences having arisen between them, it was agreed between them that they should live separately, and to effectuate that agreement articles of separation were entered into bearing date the 14th of February, 1888, reciting that such differences had arisen between them, and that, for that reason, they agreed to live separately, and immediately upon the execution of said agreement separated in fact, and continued to live separately thereafter. The articles of separation provided that C. Baldwin Fosdick, the husband, and Charles B., the husband’s' father, covenanted that they would pay to the plaintiff, Bainbridge S. Clark, for the support and maintenance of Jennie P. Fosdick, the wife, and their two children, $2,500 per annum, payable quarterly, during the period of her natural life, unless she should re-marry, in which case the allowance was to cease, and that, in case of the death of both of their two children, the allowance should be reduced to $2,000.
    The agreement contained the further provision that the trustee, Bainbridge S. Clark, should indemnify the husband against the support of his wife and the children; that he would pay the same over to her for her support and that of the children. The articles further provided that the husband, 0. Baldwin Fosdick, should not interfere with his wife and that she should have the custody, management and control and education of the children, but that the husband and Charles P. Fosdick, his father, and his wife were to have access to the children at all reasonable times and places.
    After the execution of the agreement and the separation of the parties in pursuance of the provisions in the same, and the payment of the allowance made a number of times, the wife went to reside in the state of Rhode Island and after residing there for tne period of one year, commenced an action for divorce against her husband C. Baldwin Fosdick. He appeared in the action and litigated the same to a decree, which decree adjudged that “ the prayer of the said petitioner be and the same is hereby granted ; that the bonds of matrimony existing between the said Jennie P. Fosdick and said C. Baldwin Fosdick be and the same are hereby dissolved and the said Jennie P. Fosdick have the exclusive custody of the two children Clark Fosdick and Pauldine Fosdick, until the further order of the court.”
    
      This decree or so much of it as above recited, together with the agreement thereto annexed formed part of the complaint in this action. This action was brought to recover an installment of said allowance due on the first day of December, 1885.
    The purpose of the pleader in setting out the decree obtained in the courts of the state of Rhode Island was to present the whole matter by means of a demurrer on the part of the defendant and thus malee a final disposition of all the questions in the case.
    The defendant demurred to the complaint assigning as grounds of demurrer:
    
      First, that the plaintiff has not the legal capacity to sue, for that the trust has ceased and the plaintiff has no longer any interest, the only party in interest at the time of the commencement of the action being Jennie P. Fosdick.
    
      Second, that said complaint does not state facts sufficient to constitute a cause of action.
    
      Third, that there is a defect of parties plaintiffs, in that Jennie P. Fosdick is not named therein as a party plaintiff therein.
    
      Geo. W. Lyon, (H. M. Whitehead, of counsel) for app’lts; Horace Russell, for resp’t.
    
      
       Affirming 1 N. Y. State Rep., 90.
    
   Potter, J.

The questions to be decided upon this appeal are presented by demurrer to the complaint. The complaint alleges the facts which ordinarily give an action to recover the money promised to be paid the plaintiff, as trustee under the agreement, but it also alleges a decree of divorcement obtained by the wife after the making of the agreement of separation and which, the defendant contends, defeats the plaintiff’s action. The purpose of thus pleading was to obtain a final judgment upon the rights of these parties in a more speedy and less expensive way.

It will be more orderly to consider first the ground of demurrer strictly applicable to the right of the plaintiff, as trustee, to bring the action.

By the express terms of the agreement of separation the defendant, C. Baldwin Fosdick, agrees to pay to the plaintiff, for and towards the support and maintenance of his wife, the said Jennie P. Fosdick, and their children, the yearly sum of $2,500 for and during the period of her natural life unless she remarries, etc., and the plaintiff and said Jennie agree that said sum so paid shall be in full satisfaction of the support and maintenance of said Jennie P. Fosdick and children ancl all alimony whatsoever. This clearly constitutes the plaintiff the trustee of an express trust, and requires that an action to enforce or to execute the trust should be brought in his name. Code Civ. Pro., § 449; Calkins v. Long, 22 Barb., 97; Greenfield v. The Mass. M. L. Ins. Co., 47 N. Y., 430; Slocum v. Barry, 38 id., 46; Hughes v. Mercantile Ins. Co., 44 How. Pr., 351.

The next question to be considered is the validity of the agreement itself. I think it is to be assumed, in the consideration of this appeal, that at the time of executing the instrument which forms the basis of this action, the defendant, C. Baldwin Fosdick, .and Jennie P. Fosdick were husband and wife and were living together as such.

The first inquiry should be to learn whether the courts of this state have decisively passed upon that question, and if so, to follow such holding. It was reluctantly held by the chancellor in Carson v. Murray, 3 Paige, 500, and then only upon the principle of stare decisis, as evinced by Baker v. Barney, 8 Johns., 73; Shelthar v. Gregory, 2 Wend., 422, following the English decisions prior to the revolution, that a valid agreement for an immediate separation between husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee.”

The case of Carson v. Murray, 3 Paige, 483, was upon a bill in equity by the wife against the executors of her husband, based upon an agreement of separation, for its enforcement out of the estate of the deceased husband. The case of Baker v. Barney, 8 Johns., 72, was an action to recover of the husband the price of suitable goods sold to the wife after the separation of husband and wife under an agreement making provision for the support of the wife.

And the case of Shelthar v. Gregory, 2 Wend, 422, was an action upon the bond and agreement to separate, and the defense was that after the bond was given, and before the installment or sum fell due by the terms of the agreement, the wife returned to, and was living with, the husband, and was supported by him. In these cases the husband and wife were living together when the agreement or articles of separation were executed, and separated immediately thereafter. The ruling of the court was to the effect that such articles of separation considered under these various aspects were tvalid These holdings were based upon decisions made in the English courts, and I am not aware that the English or our own courts have departed or receded from the principle thus laid down. While the husband and wife in Calkins v. Long, 22 Barb., 97, had actually separated before the agreement of separation was executed, the court, in holding that the agreement was valid, cites numerous decisions with approval in England and several of the states of the Union, to the effect that such agreements are valid and will be enforced where the separation had taken place before, or takes place immediately after, the execution of the agreement of separation, and this case is said, in a note upon page 110, to have been affirmed by the court of appeals.

Judge Davis, in delivering the opinion of the court in Walker v. Walker, 9 Wall, U. S., 743, while regretting upon the score of public policy that the courts of England and of this country had gone so far, was, as was the chancellor in Calkins v. Long, supra, constrained to hold 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, and 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 is made in respect to one which was to occur immediately, or for the continuance of one which had already taken place.”

The validity of such agreements is recognized and enforced in numerous cases decided by the courts of this and other states. Carpenter v. Osborn, 102 N. Y., 552 ; 2 N. Y. State Rep., 520 Pettit v. Pettit, 107 N. Y., 677; 12 N. Y. State Rep., 463 ; Carson v. Murray, 3 Paige, 483 ; Rogers v. Rogers, 4 id., 516; Allen v. Affleck, 64 How. Pr., 380; Dupre v. Rein, 7 Abb. N. C., 256.

"We come now to consider the question whether the divorce granted upon the application of the wife affected the agreement of separation. Ordinarily, that question would be presented by an answer to the complaint by way of defense. That matter is now presented upon behalf of the plaintiff and as a part of the complaint, and the defendant demurs to it. Of course the defendant admits the truth of the' allegations of the complaint, and just as stated in the complaint. The defendant is confined to that statement, and is not at liberty to resort to any doubtful inferences of fact arising from the circumstances or motives leading to the making of the agreement, or to any doubtful intendments from the language or construction of the agreement or the decree of divorce, unfavorable to the plaintiff.

The complaint, after setting forth the agreement of separation dated February 14,1883, alleges that on the 23rd day of September, 1885, the said Jennie Fosdick obtained a decree of absolute divorce from a court of the state of Rhode Island having power to grant the same and having jurisdiction of the parties; of the plaintiff, by reason of a bona fide residence in that state for a year, and of the defendant, by reason of his appearance in that court and the interposition of his defense to the action.

The decree, or a portion of it, is set forth in the complaint in this action from which it appears “ that the bonds of matrimony now existing between the said Jennie P. Fosdick and the said C. Baldwin Fosdick be and the same are hereby dissolved, and that the said Jennie shall have the exclusive custody of her two children, Clark Fosdick and Pauldine Fosdick, until the further order of the court.”

The complaint alleges that no alimony was asked or granted in said action, and that the wife relied upon the covenant contained in the agreement of separation in that regard.

It is contended upon behalf of the defendant that this decree estops the plaintiff from maintaining this action. There is nothing in the complaint in this action or in the decree showing the ground upon which such divorce was granted; nor when the ground on which it was granted began, or ceased, to exist. And as the estoppel must depend upon the matters set forth in the complaint and the decree, the estoppel cannot prevail unless such decree, upon whatsoever grounds it may have been granted as matter of law, nullifies the agreement of separation. I say as matter of law, for the reason that there is nothing in express terms that conditions the payment of the money upon her not applying for or obtaining a divorce from her husband. The question is, therefore, whether such decree rendered the article or agreement of separation, or its provision for the payment of the money in suit, of no further effect. It may be here remarked that the agreement in question is to be considered and adjudicated in view of its provisions and the rules applicable to agreements generally. It is to be assumed in the construction of this agreement that it contains all that the parties intended to agree to, and that their minds met upon.

By the terms of the agreement under consideration, the defendant agrees to pay to the plaintiff for and towards the support and maintenance of his wife, Jennie Fosdick and their children the. yearly sum of $2,500 for and during the period of her natural life unless she remarries, and that in case of the death of the two children the amount to be paid shall be reduced to $2,000, and that in case of the death of either said husband or wife the agreement was to be at an end and have no further force or effect.

Thus it will be seen that an application for or the obtaining of a divorce by the wife was not by the agreement made a condition of the payment of the money or in any manner to affect the defendant’s obligation to pay it.

It seems to me very clear’, both upon principle and authority, that the defendant’s contention is untenable and that the divorce granted to the wife, Jennie P. Fosdick, is not a bar to this action to recover the money stipulated in the agreement

As we have seen, the law sanctions agreements in certain circumstances between husbands and wives for separate living, and providing the means for the support and maintenance of the wife and children through the medium of a trustee to receive and disburse the same. Such agreements take the place, as far as they extend, of the duties and obligations of the law in relation to husband and wife and their children. But they do not supersede or render inoperative other duties and obligations imposed by law upon husband and wife toward each other and toward their children. They are still husband and wife, but living apart from each other and bound to observe all the other domestic duties resting upon them as husband and wife and parents, not provided for in the agreement of separation. Neither of them can marry nor commit adultery without incurring the consequences and the penalty prescribed by law to husbands and wives who commit those offenses. Hence we find numerous decisions of the courts in nearly all civilized countries, holding that either husband or wife may, notwithstanding the existence of such agreement between them, maintain against the other the ordinary action for divorce, limited or absolute, according to the ground and the jurisdiction, and whether the ground therefor accrued before or after such agreement was entered into. The following authorities, I think, sustain the proposition. Stewart on Mar. & Div., § 191; Grant v. Budd, 30 Law Times Rep., 319; Charlesworth v. Holt, 43 L. J., N. S., part 2, Ex. 25 ; Wright v. Miller, 1 Sand. Ch., 103; Carpenter v. Osborn, 102 N. Y., 559; 2 N. Y. State Rep., 520; Pettit v. Pettit, 107 N. Y., 667; 12 N. Y. State Rep., 463; Jee v. Thurlow, 2 Barn. & Cress., 547; Kremelberg v. Kremelberg, 52 Md., 553.

With these views and authorities it seems very clear to me that the agreement of separation is valid and has not been in anywise rendered ineffectual by the decree of absolute divorce granted to the wife.

This case is free from the question often involved in this class of cases arising from the allowance of a greater or less amount in the decree of divorce than the amount provided in the article of separation. The decree of divorce made no provision for alimony. Nor did the decree change the provision' in the article of separation in relation to the custody and control of the children, as I do not apprehend that the omission of the privilege of visiting the children by the father and grandfather from the decree changes at all that right as provided in the agreement.

The agreement remains unaffected in that and other respects, capable of enforcement by any of the parties to it by all proper means.

Judgment absolute should be granted, with costs, in favor of the respondent.

All concur, except Follett, Ch. J., dissenting, and Haight, J., not sitting. _  