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Montgomery v. Wilmerding

Decided: April 24, 1953.

EGLINTON H. MONTGOMERY, PLAINTIFF,
v.
LUCIUS WILMERDING, JR., AND PHILIP BASTEDO, EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF LUCIUS WILMERDING, DECEASED, DEFENDANTS



Stein, J.s.c.

Stein

Plaintiff brings this suit for a declaratory judgment of the rights of the parties under a certain agreement dated October 1, 1936 made between plaintiff, Eglinton H. Montgomery, Ruth Wilmerding Montgomery and Lucius Wilmerding.

The facts are stipulated. Plaintiff and Ruth Wilmerding Montgomery were formerly husband and wife. Two daughters were born of their marriage. On August 3, 1934 plaintiff and his wife entered into a written agreement in which it is recited that they had been living apart since August 1933 and that Mrs. Montgomery was about to institute an action for absolute divorce in the State of Nevada. The agreement provided for the custody of the two children and visitation by their father. It provided for payment by the wife to the husband of the sum of $50 per week during the joint lives of both, such payments to be guaranteed by Lucius Wilmerding, father of the wife. The wife agreed to pay plaintiff $500 in cash and to pay $500 to his attorney. Plaintiff agreed to appoint an attorney to appear for him in the divorce action in Nevada. Annexed to the agreement was an instrument executed by Lucius Wilmerding guaranteeing the weekly payments by the wife to the plaintiff. Plaintiff in his brief says this agreement was prepared and executed by the wife in Nevada and forwarded to the plaintiff in New York where it was executed by him.

A decree of divorce was entered in the Nevada court on August 27, 1934.

Later an agreement was entered into between plaintiff and his former wife on February 13, 1936. By the terms of that agreement plaintiff consented that the children be taken abroad by their mother and be returned to the United States by July 30, 1936; plaintiff's former wife agreed to pay to plaintiff not less than $300 nor more than $400 per month for the children's support, maintenance and nurse care while the children were visiting with plaintiff during the summer vacation of 1936, and the agreement provided "that it shall not be construed as a modification of the aforesaid agreement dated August 3rd, 1934."

The agreement of October 1, 1936, which is the subject matter of this suit, was entered into between plaintiff, his former wife, and her father, Lucius Wilmerding. By the terms of the agreement custody of the children was given to Mrs. Montgomery free from the control of the plaintiff. It provided for the appointment of a guardian of the person and property of the children and visitation by the plaintiff. Lucius Wilmerding agreed therein to pay plaintiff the sum of $50 per week during the joint lives of plaintiff and his former wife, and a further sum of $25 per week during the life of the plaintiff. These payments were guaranteed by plaintiff's former wife. It was also provided that this agreement shall entirely supersede the agreements of August 3, 1934 and February 13, 1936.

Lucius Wilmerding died on July 15, 1949. The defendants are the executors under his will. Plaintiff failed to receive his weekly payments after June 6, 1952, and thereupon filed a claim with executors for the amount due him. The claim was rejected and plaintiff now brings this action.

The weekly payments under the agreements from 1934 to June 6, 1952 were made by check of a stock brokerage firm of which said Lucius Wilmerding was a partner. These payments were by the brokerage firm charged one-half to the account of Lucius Wilmerding and one-half to the account of his wife. The payments made after his death were

charged entirely to the account of his widow. The defendant-executors made no payment under the agreements. It is conceded that plaintiff had no knowledge of the actual source of the payments until after the institution of this suit.

The defendant-executors contend that the agreement of August 3, 1934 had for its object the divorce of the parties thereto and is therefore void as against public policy; that the agreement of October 1, 1936 lacks consideration and is void as being against public policy for the reason that it had for its object the evasion by plaintiff of his legal duty to support his children. On the other hand, plaintiff contends that the agreement of August 3, 1934 was approved by the Nevada court in the divorce proceeding and is entitled to full faith and credit under the full faith and credit clause of the United States Constitution; that the consideration for the agreement of October 1, 1936 was the cancellation of the agreement of August 3, 1934; that because defendant's testator made payments under the agreement for a long period of time the defendant-executors are now estopped from contesting its validity.

The illegality of a contract is to be determined by the law of the place of the contract. If that law makes the contract itself illegal, of course, it is void everywhere. Staedler v. Staedler , 6 N.J. 380 (1951). The agreement of August 3, 1934 was consummated in the State of New York and the agreement of October 1, 1936 was made and executed in the ...


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