JOSEPHINE DEMARZO vs. BENJAMIN VENA.

COUNIHAN, J. In this action of contract the plaintiff seeks to recover on an account annexed for board, expenses of the last illness of Maria C. Vena, the deceased wife of the defendant, and funeral expenses of said Maria C. Vena. In the last paragraph of his answer the defendant sets out the following: "And further answering the defendant says that he was living apart from his wife for justifiable cause under a decree of the Probate Court in and for the county of Suffolk, No. 290818."

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Before trial, on the plaintiff's motion to expunge, a judge, after hearing, entered this order, "The last paragraph of the defendant's answer is hereby expunged," and the defendant took an exception. This exception is the only matter before us.

Subsequently the action was tried to a jury who found for the plaintiff for the expenses of the last illness and the funeral. The bill of exceptions embodies only the pleadings, the motion to expunge, and the judge's order thereon.

General Laws (Ter. Ed.) c. 231, Section 28, governs answers in avoidance of an action. It provides, "An answer shall state clearly and precisely each substantive fact intended to be relied upon in avoidance of the action . . .." See also Section 27. The obvious purpose of pleading the decree of the Probate Court in case No. 290818 in that part of the answer which was expunged was to avoid the plaintiff's claim of liability of the defendant for necessaries supplied to and for the funeral of his wife.

The issue therefore is related to the pleadings only. If the terms of the decree referred to would constitute a defence to the action, that part of the answer relating to the decree should not have been expunged. If otherwise, there was no error in the action of the judge.

The conclusion as to the issue here presented depends upon whether the language in that part of the answer which was expunged does in some form of words state a defence to this action. "It is not enough that the defence be suggested or hinted at, or even that the plaintiff be reasonably caused to expect that it will be asserted. The defence is not pleaded unless the words of the answer can be found to include in some form all that need be shown to defeat the action." Lewis v. Russell, 304 Mass. 41, 44. Nicholson v. American Hide & Leather Co. 307 Mass. 456, 460.

There was error in the action of the judge.

Statutes providing for decrees establishing the obligations and rights of a husband arising out of marital differences, outside of divorce proceedings, are to be found in G. L.

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(Ter. Ed.) c. 209, Section 32, as amended by St. 1938, c. 136, [Note p120-1] and Section 36. [Note p120-2]

Section 32 among other things provides that if a husband is deserted by his wife, or if he is actually living apart from her for justifiable cause, the Probate Court may upon his petition prohibit the wife from imposing any restraint upon his personal liberty until further order of the court and may make orders relative to the support of his wife. The court may revise and alter any order from time to time as circumstances may require.

Section 36 provides that a Probate Court may enter a decree that the husband has been deserted by his wife or that he is living apart from her for justifiable cause. It has other provisions permitting him to convey his real estate as if sole, and to leave a will disposing of his property to the complete exclusion of his wife. No provision is made in Section 36 for an order for support of his wife by a husband and no provision is made for revising or altering such decree.

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The defendant contends in his brief that the decree relied upon was one entered under Section 36, and the plaintiff in her brief by implication agrees. The plaintiff further admits that if the decree was one entered under Section 32 with an order for support of the wife, it afforded a defence to this action.

In view of these statutory provisions, however, we are of opinion that the question for our determination is whether a decree under either of these sections of c. 209 even without an order for support affords a defence to this action.

In McIlroy v. McIlroy, 208 Mass. 458, at page 464, in considering a decree under R. L. c. 153, Section 33, a forerunner of Section 32, this court said, "The statute expressly provides that the court after having made its order, `may from time to time' upon application of either party `revise or alter such order or make a new order or decree' as circumstances require. The manifest intention of the Legislature was that the order should not be vague and indefinite in its duration, liable to be abrogated or annulled by the mere act of the parties, and to be upheld or overthrown as parol evidence might establish or fail to establish conduct of the parties more or less inconsistent with the grounds upon which it was based, but that the order once made should continue in force until revised or altered by the court itself . . .." A fortiori a decree under Section 36 stands until revoked, no provision being made in Section 36 for any revision or alteration of it.

We are of opinion that if, when the debt which is the basis of this action was incurred, the defendant was living apart from his wife for justifiable cause because of a decree entered under either Section 32 or Section 36, he had a defence to this action, and that the judge was wrong in expunging that part of the answer which set up such a defence.

Even under the common law if he was living apart from his wife for justifiable cause or if she had deserted him, he would have had a defence in an action similar to the case at bar, for this court said in Alley v. Winn, 134 Mass. 77, at page 79, "where the wife, without justifiable cause, abandons

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her husband, or where . . . he is justified in withdrawing from her society, she does not carry his credit with her." And again in Foss v. Hartwell, 168 Mass. 66, at page 67, it was said, "Under some circumstances, where a man and wife are living apart, it may be that the man may be liable for the wife's support . . .. This is undoubtedly true where the wife leaves for a justifiable cause . . .. But he is not so liable where she leaves without justifiable cause" (emphasis supplied).

Malden Hospital v. Murdock, 218 Mass. 73, is a case in which a third party was suing a husband for necessaries furnished his wife who was living apart from him after a decree under a statute similar to Section 32. At pages 74-75 it was said, "The plaintiff relies upon the well settled doctrine that where a wife is living apart from her husband with his consent and without provision having been made for her support, she carries with her his credit, and he is liable for necessaries furnished to her by third persons. . . . But besides the right of pledging his credit for her support she may by petition filed in the Probate Court obtain against him an order or decree . . . for her support . . .. Manifestly, when she has availed herself of this remedy . . . it no longer is true that provision has not been made for her support, and the ground for action by third persons against her husband no longer exists. This view is confirmed by the fact that the statute provides that an order for the support of the wife may be made upon the application of the husband as well as upon that of the wife; and the purpose of an application by the husband ordinarily would be to relieve himself from a multiplicity of suits by third persons for necessaries furnished to his wife and to have the total amount of his liability determined in one proceeding" (emphasis supplied). If no order for her support is made or if the amount of money awarded for her support under Section 32 is inadequate her obvious remedy is to apply to the court for a modification of the decree.

Welker v. Welker, 325 Mass. 738, is a case arising out of an appeal by a wife from a decree entered upon a petition of her husband under Section 32. In passing upon that appeal this

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court also considered the effect of a decree under Section 36. At page 741 this court said, "The petitioner was seeking a determination of his status as a deserted husband and to secure whatever advantages might arise from an adjudication that he was living apart . . . [from his wife] for justifiable cause. . . . While one of the principal purposes of the statute is to compel a husband to furnish support to his abandoned wife . . . it also furnishes a method by which either the husband or the wife may secure an adjudication as to his or her status as an abandoned husband or wife, as the case may be . . . and, in the case of the husband, freedom from the claims of creditors for debts incurred by her after the separation" (emphasis supplied).

We believe that although, after a decree under Section 32 or Section 36, the parties still remain husband and wife, the incidents which constitute the marriage are so changed that the relationship which remains is substantially different from that ordinarily indicated by the term marriage. The husband's duty to support the wife is either terminated altogether or limited by the terms of such a decree. It was recently said in Wiley v. Wiley, 328 Mass. 348, at page 349, a case arising out of Section 32, "But the scope of the statute and the prayers of the petition go beyond the matter of a decree in personam for money payments. They comprehend a modification of the incidents of the status of marriage." See Brow v. Brightman, 136 Mass. 187; Baldwin v. Foster, 138 Mass. 449; Malden Hospital v. Murdock, 218 Mass. 73; Welker v. Welker, 325 Mass. 738. We are of opinion that a decree under either Section 32 or Section 36 is in effect a judgment in rem which is binding upon all the world.

The plaintiff here relies upon Barney v. Tourtellotte, 138 Mass. 106, to support her contention that either a decree under Section 32 without an order for support or a decree under Section 36 was of no effect and therefore not admissible. In so far as anything is said in that case which seems inconsistent with the position here taken we do not feel compelled to follow it.

It is true that that case has been cited and quoted from

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a number of times [Note p124-1] but not as we think for propositions inconsistent with the present decision. It is to be noted that all of the cases which cite it or quote from it, except one which we shall hereafter mention, apparently arose out of controversies between parties who were the same as the parties in the suits in which the decrees considered were entered.

Moreover the Barney case seems hardly consistent with Brow v. Brightman, 136 Mass. 187, decided by the same court not many months before. See Baldwin v. Foster, 138 Mass. 449. It is difficult if at all possible to reconcile what was said in the Barney case as to status with what was said in Malden Hospital v. Murdock, 218 Mass. 73, Welker v. Welker, 325 Mass. 738, and Wiley, v. Wiley, 328 Mass. 348, all of which cases seem to treat a decree under Section 32 or Section 36 as modifying the marital status or creating a new status and therefore appearing to be a decree in rem.

The case of Stricker v. Scott, 283 Mass. 12, which is the exception mentioned above, is distinguishable for there in an action for alienation of affections by a husband against a third party a decree dismissing the wife's petition for separate support was excluded. The court said at page 14, "The facts of the petition and of the trial were in evidence. The decree itself did not bear upon the conjugal attitude of each to the other." While the Barney case was cited, the decree referred to in the Barney case was plainly different from the decree sought to be introduced in the Stricker case because the decree in the latter case was one denying the wife's petition for separate support. Such a decree manifestly could not be considered as in any way altering or modifying the marital status.

It necessarily follows from what we have said that the decree referred to in that part of the answer which was expunged stated a defence to the claims of the plaintiff.

Exceptions sustained.