Ham v. Twombly

8 Citing cases

  1. Reynolds v. Owen

    104 N.E.2d 146 (Mass. 1952)   Cited 6 times

    It has long been settled in this Commonwealth that an agreement between husband and wife through a third person which is made while they are living apart or on the eve of a contemplated separation, which takes effect immediately thereafter, and which is executed for the purpose of providing definite support for the wife, is valid if its provisions are fair and reasonable and if they are made without fraud or coercion. Fox v. Davis, 113 Mass. 255. Ham v. Twombly, 181 Mass. 170. Bailey v. Dillon, 186 Mass. 244. Terkelsen v. Peterson, 216 Mass. 531. French v. McAnarney, 290 Mass. 544. O'Hara v. Donovan, 303 Mass. 393. Restatement: Contracts, § 584. The fact that a wife having good grounds for a divorce attempts in good faith to secure a divorce and agrees with her husband as to the amount of alimony and the expenses to be incurred, in order to avoid publicity or scandal because of his marital misconduct, does not make a divorce subsequently obtained by her a collusive or fraudulent one.

  2. Gardner v. Delaney

    103 F. Supp. 610 (D. Mass. 1952)

    On these facts, it seems reasonably clear that the Massachusetts courts would hold that the bequest thus coming into the hands of the executors was held by them upon a constructive trust for the designated beneficiaries. This is certainly the prevailing rule of law in other jurisdictions. Scott on Trusts, § 55.1. It has been repeatedly recognized as such by the Massachusetts courts, even though no case has been found in which the exact point here involved was presented for decision. Kerwin v. Donaghy, 317 Mass. 559, 569, 59 N.E.2d 299; Beals v. Villard, 268 Mass. 129, 132, 167 N.E. 264; Taber v. Shields, 258 Mass. 511, 512, 155 N.E. 643; Ham v. Twombly, 181 Mass. 170, 172, 63 N.E. 336; Bennett v. Littlefield, 177 Mass. 294, 298, 58 N.E. 1011; Olliffe v. Wells, 130 Mass. 221, 224; Glass v. Hulbert, 102 Mass. 24, 39. In the light of these cases, it would

  3. Kerwin v. Donaghy

    317 Mass. 559 (Mass. 1945)   Cited 54 times

    The Zell case was reversed in 322 U.S. 709, by a divided court, two justices voting to affirm, four justices holding that recovery by the plaintiff upon the oral addition to the written contract was precluded by the parol evidence rule, and three justices holding the oral addition contrary to public policy. Even if, notwithstanding the terms of the trust agreements, the remainder passing to Gladys under those agreements might be subjected to a trust in favor of her brothers and Lillian A. Kerwin by proof of an oral promise by Gladys to share the remainder with them ( Ham v. Twombly, 181 Mass. 170, 172, 173; Beals v. Villard, 268 Mass. 129, 132, 133; compare Scott, Trusts [1939] § 38), the difficulty in this case would be that there is little evidence of such an oral promise. The trust agreements themselves, and all that was said when they were drawn and executed, negative any promise that would benefit Lillian A. Kerwin, for the plain purpose was to disinherit her.

  4. Beals v. Villard

    167 N.E. 264 (Mass. 1929)   Cited 4 times

    They seek to raise a trust after the will has been given full effect. See Olliffe v. Wells, 130 Mass. 221, 225; Ham v. Twombly, 181 Mass. 170, 172; Trustees of Amherst College v. Ritch, 151 N.Y. 282, 324. This suit, therefore, is not barred by the probate decree. The evidence — as the trial judge found properly — shows the following facts: "The testatrix was interested in various humanitarian movements, and in proposals for social and political reform; among others, in the feeding and clothing of sufferers from famine, the welfare of laboring people, the social advancement of colored people, and the protection of liberty of speech, printing and assemblage.

  5. Taber v. Shields

    155 N.E. 643 (Mass. 1927)   Cited 6 times

    " In a later case it was said that in such cases the "trust arises out of the confidence reposed in him [the devisee] by the testator and of his own fraud, which a court of equity, upon clear and satisfactory proof of the facts, will enforce against him." Olliffe v. Wells, 130 Mass. 221, 224. Ham v. Twombly, 181 Mass. 170. Young v. Young, 251 Mass. 218. Amherst College v. Ritch, 151 N.Y. 282, 323. Gilpatrick v. Glidden, 81 Maine, 137. There is no express trust created by either will, and neither recites any agreement of the parties.

  6. Kerr v. Kerr

    128 N.E. 409 (Mass. 1920)   Cited 13 times
    In Kerr v. Kerr, 236 Mass. 353, in view of the interpretation given the agreement, the question here presented was not discussed at length although it was intimated that the agreement if valid with reference to divorce proceedings would not limit the power of the court.

    Whatever the effect of such an agreement might be on the property rights of the wife, James H. Kerr could not relieve himself from legal liability for the suitable support of his child by the assent of the wife to an agreement so wholly inadequate. See Albee v. Wyman, 10 Gray, 222; Chapin v. Chapin, 135 Mass. 393; Ham v. Twombly, 181 Mass. 170; Wolkovisky v. Rapaport, 216 Mass. 48; McConnell v. McConnell, 98 Ark. 193; Pereira v. Pereira, 156 Cal. 1; Seeley's Appeal, 56 Conn. 202; Wilson v. Wilson, 40 Iowa, 230; Carey v. Mackey, 82 Maine, 516; Galusha v. Galusha, 116 N.Y. 635; cases cited in 1 R. C. L., Alimony, § 73, 9 R. C. L., Divorce Separation, § 356, and in 19 C. J., Divorce, § 523. The ruling of the court was erroneous, and the entry must be

  7. Wolkovisky v. Rapaport

    216 Mass. 48 (Mass. 1913)   Cited 10 times

    " It does not appear whether the trial judge on the evidence before him regarded the trust agreement merely as an attempt in good faith to provide for alimony, in connection with a divorce to which the plaintiff was legally entitled (see Ham v. Twombly, 181 Mass. 170), or whether he was satisfied that it was made in pursuance of a collusive compact between the husband and wife for procuring a divorce, under which she was to bring a libel and he was to remunerate her therefor and to make no contest in court. In either event, on the facts stated in the memorandum, the bill was rightly dismissed.

  8. Sheehan v. Sheehan

    77 N.J. Eq. 411 (Ch. Div. 1910)   Cited 14 times

    Collusion will be presumed where it is disclosed that * * * the parties * * * have agreed to allow the case to go by default without an appearance or answer by the defendant, or agreed that the innocent party would procure a divorce for the guilty party, the latter to pay the former a sum of money when the decree is obtained. * * *" I do not think that I have made an absolutely exhaustive search of the authorities outside of New Jersey, but I have made some, and have found the following cases dealing with the general subject: Ham v. Twombly, 181 Mass. 170, 63 N. E. 336 (1902): "If a wife in good faith undertakes to procure a divorce to which she legally is entitled upon the ground of adultery already committed by her husband, and to prevent unnecessary publicity or scandal her husband agrees with her as to the amount of alimony and the expense to be incurred for witnesses, this does not make a divorce so obtained collusive or fraudulent." Gentry v. Gentry, 67 Mo. App. 550 (1890): "Where husband and wife by an agreement stipulate that they mutually agree to make application for a legal separation, etc., and one of them thereupon sues for a divorce, the suit cannot be maintained."