
    H. Melissa Whiton, Resp’t, v. Jacob H. Snyder et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    I. Wills—Conditions attached to devise.
    A condition subsequent, in a will, intended to prevent a husband from living with his wife cannot be sustained.
    2. Same—Pleading—Divorce.
    About 1853 the son of the testatrix married, but did not live or cohabit with his wife. A year after he obtained, as alleged, “a formal decree of absolute divorce ” in Minnesota; upon what ground does not appear. In 1873 the mother made a will, by which she gave all her real estate to her • son for life, or “ while he shall live separately from his present wife; ” on his decease, “or when he shall again live with his present wife,” the property was to pass to nieces. The testatrix died in 1877. In 1879 the son began to live and cohabit with his wife, and so continues. Held, that the son did not thereby forfeit his life estate; and that, on demurrer, the court could not assume from the allegation of the complaint that the Minnesota divorce would be held valid here.
    Appeal from interlocutory judgment overruling demurrer to complaint.
    
      Cole H. Denio, for appl’ts; James Lansing, for resp’t.
   Learned, P. J.

This is an appeal from a judgment interlocutory, overruling a demurrer.

The action is for a partition, and the complaint sets forth the facts showing the alleged title of the parties.

Jacob H. Snyder is entitled, unquestionably, to three-fourths of the property. The other fourth belonged to his mother at the time of her death. She died in 1877, having previously made her will. The question in dispute is whether, under the will, Jacob H. Snyder was, at the commencement of this action, the owner of that one-fourth; or whether the same, at that time, belonged to the plaintiff, Whiton, and to the defendants, Sherman and Lane.

The facts material to this question, as stated in the complaint, are substantially as follows: Jacob H. Snyder and his wife Mary were clandestinely married about twenty years before the making of the will; immediately after their marriage, without cohabiting, they separated and lived apart; Jacob immediately took steps to procure a divorce and for that purpose went to Minnesota where he procured, about a year afterwards, a formal decree of divorce; he and the testatrix supposed this decree to be valid. He and his said wife continued to live apart until after the death of the testatrix. The reasons which probably induced this separation and also the dislike of the testatrix to the wife of Jacob H. are stated in the complaint, but need not be mentioned here. They do not in the least impugn the moral character of the wife.

The testatrix by her will gave all her real estate to her son “for and during the term of his natural life or while he shall live separately from his present wife.” On his decease, “ or when he shall again live with his present wife ” the testatrix gave the same to her nieces, viz: the plaintiff and the defendants, Sherman and Lane.

Subsequently to the probate of the will, in 1879, said Jacob H. again began living and cohabiting with his said wife and has ever since so continued.

The plaintiff claims that thereby Jacob H. has forfeited his life estate and that the same has passed to said nieces; and so the learned court held. The appellant insists that the subsequent condition attempted to be established by the will is against good, morals and invalid.

We cannot assume upon the allegations of the complaint that-Jacob H. has been legally divorced from his wife. The statement is simply that he “ obtained a formal decree of absolute divorce,” in the state of Minnesota; and that he went there for that purpose;: the residence of himself and his wife being in this state previously ; and that he immediately returned to this state. A formal decree is probably meant to be distinguished from a valid decree; especially as there is the further allegation that Jacob H. and the testatrix believed it to be valid, and there is no clear averment that the decree was valid. It is well known that many decrees of this kind, obtained in western states, are not held to be valid here.

It is further to be observed that, whatever the testatrix believed, she twice uses these words in her will, “ his present wife,” and thus recognizes the fact that Jacob H. had a wife at the date of the will from whom he was living separately, and from whom she desired to induce him to live separately.

And still further it is to be observed that there is no allegation that it was for any fault of hers that Jacob H. was living separately from his wife. Indeed the contrary may be inferred from the allegations of the complaint.

Jacob H. ought to live with his wife, if she had given him no ground, by any fault of hers, for living separately. It was his duty to support her and to give her the comfort of his society. Whatever her social position had been, or whatever her religious views were, he had made her his wife, and the laws of God and of man required him to be a faithful husband to her. On what pretext a Minnesota court may have pretended to free him from this duty, we cannot say. Longer experience seems to have satisfied him that the proceeding was invalid, and he resumed the relations which should never have been interrupted.

The question here is not strictly on the validity of restraints on marriage. The question is whether a condition subsequent intended to prevent a husband from living with his wife should be sustained.

The only case cited by plaintiff similar at all to the present is that of Cooper v. Remsen, 5 Johns. Ch., 459. There a father gave a legacy of so much a year to his daughter during her separation from her husband. At the time of making the will the daughter and her husband lived separately. At the death of the testator they were living together. Afterwards they separated for a year ; then lived together for some few years when the husband died. It was held that she was not entitled to the annuity during the separation of a year. This decides nothing on the point in question. The same will had previously been before the court in 3 Johns. Ch., 382, and a remark there made is important: “The provision may have been humanely intended to provide a suitable maintenance for a deserted child.” That case was decided when to a greater-extent than at present the wife was dependent upon the husband and on his property. A provision for a deserted wife might be humane; but a provision to induce the husband to desert would be quite different.

In the present case if the testatrix had provided for the abandoned wife of Jacob H. as long as he lived separately from her a very different case would have been presented. But here the testatrix seeks to bribe the husband to continue the abandonment of the wife which he had entered upon.

In Potter v. McAlpine, 3 Dem., 108, at page 123, a clause of a will was considered which made a gift to a son of the testator-conditioned on his not living with or supporting his wife; and it was held void as contrary to public policy and good morals. Several cases are there cited to which we refer.. Tennant v. Braie, Tothill, 78; Brown v. Peck, 1 Eden’s Ch., 140 ; Conrad v. Long, 33 Mich. 78. In this last case there was a devise to a married woman if she should conclude not to live with her present husband; if she should continue to live with him, then to another person. It was held that she took absolutely.

In Wilkinson v. Wilkinson, L. R., 12 Eq., 604, a testatrix gave property to her niece, the wife of W., who was living and doing business in Skipton, with a condition that all the niece’s interests should cease “ should she not cease to reside at Skipton • within eight months after my decease." The condition was held void. See, also, Wren v. Bradley, 12 Jurist, 168; 2 Williams on Executors, 1264, 1373, Sixth Ana. Ed., and cases there cited

It seems to us then that this condition was void.

We are not called upon to decide as to the effect of this condition, if Jacob H. had been validly divorced from his wife for the only cause recognized by the law of this state.

Judgment interlocutory reversed, with costs, and judgment interlocutory for defendants on the demurrer, with costs, with usual leave to plaintiff to amend complaint on payment of costs.

Landon and Putnam, JJ., concur.  