Summary
In Gauthier v. Laing, 96 N.H. 80, recovery was denied for services rendered a deceased where illicit cohabitation of the parties was an inseparable and indivisible part of the bargain.
Summary of this case from Levesque v. CoteOpinion
No. 3852.
Decided January 3, 1950.
One may not recover the reasonable value of personal care and services rendered a deceased in his lifetime although payment therefor was mutually understood where the illicit cohabitation of the parties is an inseparable and indivisible part of the bargain.
PETITION, under R. L., c. 355, s. 28, to recover from the defendant for personal care and services rendered the decedent. Trial by the Court (Grimes, J.) with a decree for the plaintiff in the amount of $4,420. Defendant's exceptions to the findings, rulings and decree, quoted below, were reserved and transferred.
"The petitioner, Laura E. Gauthier, had been friendly with the deceased, Arthur Smith, from 1912, and had lived with him as man and wife without having been legally married from 1920 until the time of his death on January 24th, 1944.
"Up until 1933 both Mr. Smith and the petitioner worked, and the the petitioner, in addition to working outside for wages, performed all the ordinary duties that a housewife would perform in the home. In 1933, however, Smith's health became poor, and he required additional attention at night, and the petitioner, due to her own poor health, found it impossible to carry on the duties in the home and work outside as well. She therefore gave up her work outside the home sometime during the year 1933, and after obtaining some treatment at the State Hospital, devoted herself exclusively to the care of the home and Arthur Smith.
"They lived together as any man and wife would. Smith would turn over his pay to the petitioner for the payment of the expenses of running the home. What resources Mrs. Gauthier had she used for the purchase of clothing and other incidentals for herself, so that at the time of Smith's death she had practically nothing in her bank account, and had no assets except a twenty-five dollar war bond. Practically all the expenses of running the household were paid out of funds supplied by Smith.
"It appears that they were a very affectionate couple, and in fact got along as well, if not better, than most married couples. Smith's condition was such that he required intermittent care. Mrs. Gauthier might be called upon during the night to care for him if he had one of his spells. He continued to work rather steadily up until 1943, but his condition was such nevertheless that he required the constant presence of someone to care for him in case he was stricken with an attack. Beginning in 1943 he started to have more and more trouble, and during that year he was able to work only about six weeks. He went down hill, both physically and mentally, and during the first part of 1943 he became conscience stricken with respect to certain moneys which had come into his hands from the estate of a relative, and he therefore consulted a lawyer in Manchester in connection therewith. He was of the Catholic faith, and the fact of his divorce and the situation between himself and Mrs. Gauthier began to trouble him as he realized that he was approaching the end of his life. The attorney with whom he consulted relative to the estate matter, with the aid of a priest, persuaded him to give up his relationship with Mrs. Gauthier and return to his [former] wife. This he did, some time prior to July of 1943. He stayed with his former wife only a few days, however, and then returned to Mrs. Gauthier with the feeling that his wife did not want him, and that Mrs. Gauthier was the only one he could turn to to care for him for the remainder of his life.
"By July of 1943 he was in such poor condition, physically and mentally, that he could not, in the opinion of his lawyer, make a valid will. He needed almost constant attention, and the lawyer who was called in during July of 1943 for the purpose of making a will told Mrs. Gauthier that Smith wouldn't last long, that he was in bad shape, and to do the best she could for him. From this time on his condition became worse, and he required the constant care of the petitioner, who waited upon him night and day, not even leaving the house for the purpose of acquiring groceries, until his death on January 24th, 1944. During the last week of his life the petitioner was so run down, due to the constant care which he required, that it became necessary to have a practical nurse attend him.
"It is found that during the last months of his life he was unable to do anything for himself. He could not control his bowels or his urine; it was necessary for the petitioner to assist him in and out of bed, dress, undress, feed and bathe him, and devote her entire time to his care.
"While the petitioner did not expect to be paid for her services by the hour or by the day during the lifetime of Mr. Smith, she did nevertheless expect to receive compensation for her services upon the death of the decedent, and there was a general understanding between them that she should have what was left of his property upon his death in return for the services which she performed for him during his lifetime. Whatever was left upon his death was to be `my reward — my pay.'
"Smith himself expected to pay for her services by way of a will, and told her on at least one occasion that if any difficulty arose whereby she would not obtain his property by will that she should put in a bill for her services. He attempted to carry out his part of the understanding by making a will in her favor as early as July, 1943, but the attorney who was called in to draw the will at that time failed to do so under the belief that Smith did not then have testamentary capacity. A will which was dated January 18th, 1944, and which left everything to the petitioner, was disallowed. Gauthier v. Gosselin, 94 N.H. 496.
"The Court finds that the petitioner is not guilty of culpable neglect in not having filed her claim within the first year of administration, nor in having failed to have brought suit prior to the expiration of the second year of administration. She had reason to believe that the will would be upheld, and, in fact, the verdict of the jury fortified that expectation, and it was not until the decision of the Supreme Court, on December 2nd, 1947, that it was determined that the findings of the jury were advisory only to the Trial Court. It is found that justice and equity require that she be permitted to present her claim by way of this petition.
"It is further found that there was a mutual understanding between the petitioner and Smith that the petitioner would be compensated for the services which she performed for Smith during his lifetime, and it was mutually understood between them that she was to have whatever remained of his estate at his death. Although he made two attempts to carry out his part of the understanding between them, he nevertheless failed legally to make provisions for Mrs. Gauthier to have the estate. It is found that justice and equity require that she recover the reasonable value of her services during the last six years of his life. It is further found that the services performed by the petitioner during that period were reasonably worth forty-four hundred twenty dollars ($4420.00). The petitioner is therefore awarded a verdict in that amount."
Bois Bois and James A. Manning (Mr. Manning orally), for the plaintiff.
McLane, Davis, Carleton Graf and Stanley M. Brown (Mr. Brown orally), for the defendant.
The crux of this case is whether plaintiff's claim, found by the Trial Court to be meritorious, is to be defeated by the meretricious relationship between the parties. Like most questions involving illegality and public policy there is much to be said for both sides and conflicting views of the applicable law are prevalent.
On behalf of the plaintiff it may be said that she, and not the heirs, was the only one who gave the decedent any care, treatment and attention during the last six years of his life. This was particularly true during the latter two years when his condition demanded greater attention and care. It is not unprecedented to rule that "a person does not become an outlaw and lose all rights by doing an illegal act" (Nat'l Bank Loan Co. v. Petrie, 189 U.S. 423, 425 Holmes, J.) and that "equity does not demand that its suitors shall have led blameless lives." Loughran v. Loughran, 292 U.S. 216, 229 (Brandeis, J.). That view of the law is not confined to the jurisdiction cited as appears from the following quotation from Metropolitan Life Ins. Co. v. Olsen, 81 N.H. 143, 146, 147 (Parsons, C. J.): "Legally she was not his wife. Their way of life was not in accord with the criminal law or the moral view of the community. But the court is not now administering the criminal law or their view of the law of morals. If it were, fining one of the parties [$4,420.] . . ., or depriving her of that sum to express the court's indignation at the immorality of her habit of life, would hardly satisfy the ordinary sense of justice." A bargain for housekeeping services otherwise valid is not rendered illegal by the "fact that their illicit relations furnished the motive." Crossett v. Brackett, 79 N.H. 102, 104. "The fact that past cohabitation is the motive for a promise will not invalidate it." 6 Williston, Contracts (Rev. ed.) s. 1745, n. 5.
Upon behalf of the defendant it may be said that the bargain made and executed between the plaintiff and the decedent was an entire and indivisible one and that the meretricious part is inseparable from the meritorious part. Harlow v. Leclair, 82 N.H. 506. "As a consideration partly illegal for an indivisible promise vitiates the whole promise, one who serves as housekeeper or servant under a contract of employment cannot recover on the contract if illicit cohabitation was contemplated and actually took place." Williston, supra, s. 1745, n. 7; Stewart v. Waterman, 97 Vt. 408. In that situation "the law leaves the parties where they placed themselves" (Meredith v. Fullerton, 83 N.H. 124, 134) and recovery is denied. Anno. 7 A.L.R. (2d) 8, 137; Thompson's Estate, 337 Ill. App. 290.
The Restatement, Contracts, s. 589 provides: "A bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal; but subject to this exception such intercourse between parties to a bargain previously or subsequently formed does not invalidate it." It is evident that the Trial Court in denying defendant's claims of illegality and allowing the plaintiff to recover, thought that bargain for care was not united in consideration or promise with the illegality of their relationship. See Williston, supra, s. 1631, n. 13; Zytka v. Dmochowski, 302 Mass. 63; Burns v. Stevens, 236 Mich. 447. In other words the illegal part of the contract was terminated and could be separated from the legal part. While I would uphold the Trial Court's decision, a majority of the court are of the opinion that the arguments in favor of the defendant outweigh those in favor of the plaintiff and that the defendant's position is supported by the weight of the authorities.
Accordingly, it is unnecessary to consider other questions raised by the parties since this decision on the main issue disposes of the case. Therefore, the order must be
Exceptions sustained.
BLANDIN, J., did not sit.