Farnum v. Bartlett , 52 Me. 570 ( 1864 )

The opinion of the Court was drawn by

Barrows, J.

This is an action of debt on a bond in the sum of $200, dated Aug. 30, 1839, and given by Stephen Bartlett, the defendant’s intestate, to his sister, the plaintiff,a married woman, at that time living separate from her husband, from whom she has since obtained a divorce.

"The condition of this obligation is such that if the said Stephen, his heirs or assigns, shall fully and completely provide for, maintain and support the said Maria in sickness and health, as her comfort and convenience may require, for, and during her natural life, and shall permit the said Maria to occupy for her own sole use and benefit, the east chamber in the dwellinghouse now occupied by the said Stephen, with the right of passing to and from the said chamber by the usual and ordinary means and passageways, so long as she shall live, — provided she shall always, when requested and able, eat at the table of the'said Stephen, and personally occupy the said chamber, — then this obligation to be void, otherwise,” &c.

The first objection to the pláintiff’s right to recover, that is relied upon in argument, is that the bond is invalid as being in contravention of good morals and tending to impair the sacred obligations of the marriage covenant, because it is given to a married woman and provides for her separate maintenance. Such a bond, given to induce a separation between husband and wife, might be liable to that objection, but the single fact, that the plaintiff was a married woman at the time of the giving of the bond, is not a sufficient foundation for the assumption that such was the intention or effect. On the contrary it appears that, at the time of the giving of the bond in ’ suit, the plaintiff was living separate from her husband, and that she subsequently procured a divorce from him, indicating that the separation was not by her fault. The objection cannot prevail. Has there been a breach of the bond ?

The true construction of this obligation would seem to be, that the obligor, while binding himself fully and completely to provide for, maintain aud support the obligee as h.er comfort and convenience might require during life, and to permit her to occupy a certain room in his house, reserved to himself an option whether to afford that support to her at his own table as one of his family, or in some other manner. In other words, she was to have the use of the east chamber if she chose to occupy it personally, and he was not to be bound to supply her at a separate table, but she, if able, and he 'requested it, was to eat at the table of the said Stephen, and personally occupy the said chamber.

He seems to have contemplated the possibility, that circumstances might arise which would render it more agreeable to him to afford the required support elsewhere than at his own board, but he took care to stipulate that she should not be at liberty to claim it elsewhere if he chose to have her there. What were the reciprocal rights and duties of the parties as to notice and request?

The holder of such a bond might or might not choose to rely on it for her support. She might have other means to which she would prefer to resort. While health and strength remained to her, she might prefer to exercise body and mind in some useful and profitable occupation, rather than to eat the bread of idleness. When she chose, or in the language of the bond, "as her comfort and convenience might require,” she might call on the obligor.

This right to a support was a privilege which she might waive by words or acts, whenever and so long as she chose. It appears, that, after making her home in the obligor’s family for some years next succeeding the date of the bond, she made a journey to Louisiana, and, after remaining there some time, returned to this State and lived with her son-in-law for some years, and subsequently visited Missouri in the lifetime of the obligor, and as it would seem without making any claim upon him for her support in any form. Thus doing, she must be considered as waiving for the time her claim for support, and his failure to furnish it under those circumstances, would constitute no breach of the bond. A reasonable construction of the instrument would not require him to follow her out of the State, when she voluntarily removed herself from her previous home, nor to tender to her a maintenance to which she made no claim.

But when the bond was presented to this defendant, as administratrix of the obligor, by the plaintiff’s agent, the case assumed a different aspect. He testifies, and she does not deny, that he called upon her in November, 1861, after her appointment as administratrix, informed her that he had seen her published request for all who had demands to exhibit them ; that he produced this bond and read it to her. The conversation that ensued shows that she understood that a call was made upon the estate for the support of the obligee, a support which she indicated no readiness to afford unless she should find herself legally compelled to do it. On the contrary, both at that time and when the plaintiff subsequently presented herself with her agent, the defendant, to say the least, expressed doubts about her liability or the validity of the bond, and plainly showed a disposition and intention to test the question legally.

If she would have availed herself of the proviso in the bond that the obligee should, when requested, and able, eat at the table of the said Stephen, and personally occupy the said chamber,” she should have made the request. She has never made such request, and she refused to pay the subsequent order given for the payment of the individual who furnished board, after the support had been thus claimed. There has been a manifest breach of the bond. Upon the whole, it is probable that it will be for the comfort and advantage of both parties, as it certainly is in accordance with the legal rights of the plaintiff, that there should be, according to the stipulations in the report by which the case is submitted to us for decision,

Judgment for the plaintiff for $200 and, costs.

Appleton, C. J., Cutting, Davis, Walton and Dickerson, JJ., concurred.