Cooper v. Remsen

The Chancellor. I have had occasion already to express my opinion, on the condition annexed to the legacy to the plaintiff. (3 Johns. Ch. Rep. 382. 522.) The testator intended to make the provision for the plaintiff, during her separation from her husband, and that separation actually existed at the date of the will. He only intended it to continue u during the separation j” and at the time of his. death there was no separation, but the plaintiff and her husband lived and cohabited together, as husband and wife. The testator had a right to judge for himself, whether any, and what provision he would make by will for the plaintiff, and he determined to give her the furniture she had received, absolutely; but he expressly, and in very clear and determinate language, excluded her from any share of his estate, except the annuity in question, upon the condition expressed. The Court cannot make a will for the testator, but it is bound to support the will as it is made, if the condition is not void by being impossible, or contra bonos mores. There is a wide difference between a .bequest to a daughter during her separation from her husband, when the separation [462] was then actually existing, without being procured by the-testator, and a legacy to her, if she lived apart from her husband; for that would be to hold out a temptation to a separation, which would be contra bonos mores. The legacy would be simple and pure in the latter case, according' to -the decision of Lord Norlhington, in Brown v. Peck ; (1 Eden. 140.) but in the former case, the legacy depends upon the fact of separation then already commenced, and was, in that event, a kind and charitable provision. The condition annexed to the legacy being, in this case,, lawful, the plaintiff must bring herself within its terms, to entitle her to the annuity; and she has failed on this point of fact. She and her husband lived together at the time of the testator’s death; and they separated in three months after his death, and continued separate for one year. 1 am to presume that they then came together and cohabited until her husband’s death,- which was upwards of four years after the death of her father. The separation of her and her husband by his death, was not the separation alluded to or intended by the will. The testator evidently referred to a separation in the life time of the husband ; and he only intended to make a provision for her during that interval, for he declares, that he gives her the furniture, “ in full satisfaction of all further provision out of his estate.” The question, then, is, whether the plaintiff was entitled to the annuity during the separation of a year subsequent to the testator’s death ? I have already observed, when the suit,was before me for the annuity, which was brought in the life time of the husband, that a voluntary separation of the plaintiff and her husband, after the testator’s death, would not entitle her to the legacy. She must show, at lea«t, an involuntary separation, coerced and rendered necessary, by the acts, or by the desertion of the husband. We have no such proef in this case. We have only proof, by one witness, of the real fact of separation for one year, and that is not sufficient. The., plaintiff may [463] have voluntarily renounced her conjugal duties.- She avers in the bill, that the separation was against her will; but the defendants do not admit it, in their Answers, and she furnishes no proof of the manner and cause of the separation. She was bound to make out her case, especially as it had been declared, when her case was formerly before the Court, that an involuntary separation on her part was indispensable to be shown. I incline to think, that, if the subsequent separation had been involuntary, it would not have satisfied the will. The testator must have made the will in reference to the actual separation existing at the time he made it, and the separation must have been subsisting at his death, when the will took effect, to bring the plaintiff within its terms. If he had made the will in reference to a separation, to take place after Ms death, it would have been a provision contrary to good morals, and good policy, because, it would be holding out a temptation to the parties to separate, by private agreement, for the very purpose of acquiring the annuity. And it would be extremely dangerous, to allow the wife to set up a separation, subsequent to her father’s death, and to claim a benefit from it. Such a claim is. liable to great abuse, and ought to be viewed with extreme suspicion. If the condition be valid, as I think it was, for the reasons already mentioned, then the condition must have been fulfilled at the testator’s death ; and a subsequent fulfilment of it, is inadmissible on every principle of sound policy. Bill dismissed, without costs.