Family Law Commons^™

The Present Status Of "Illusory" Trusts-The Doctrine On Newman V. Dore Brought Down To Date, Edward A. Smith

Michigan Law Review

It has long been the policy of the law to provide for a widow by setting aside some portion of her deceased husband's estate for her future support. Such a policy, it has been said, dates back to the laws of Hammurabi and later evidences of it may. be found in the Justinian Code of the Roman Law, and in English law from the earliest times; its final manifestation being in the well-known common law dower. It is not with dower, however, that we are here concerned, for that institution is sufficiently well understood to require no discussion in this …

Construction Of Private Instruments Where Adopted Children Are Concerned: Ii, J. Wesley Oler

Michigan Law Review

Thus far in the discussion the attempt has been to consider a number of common terms of general designation, such as "children," "issue," and "heirs," detached from other language with which they may be found and disassociated from the circumstances under which they may be used, with a view to estimating their intrinsic significance in resolving questions as to the effect of adoption upon the identification of persons designated by them. The examination from this point: of view could lead to the deduction that in themselves the particular terms of designation furnished varying degrees of assistance to the interpreter of …

Construction Of Private Instrument's Where Adopted Children Are Concerned: I, J. Wesley Oler

Michigan Law Review

The institution of adoption is of ancient tradition, knowing primitive origin and tracing its history through many civilizations. Today its universality still bespeaks the human needs from which it springs.

Recent growth of statutory reforms, procedural and substantive, in our adoption system reflects the increasing social interest of the state in this field. Procedurally, extensive strides have been made to safeguard those directly concerned in adoption, and through them to protect the public in general. Substantively the lagging but nonetheless noticeable trend is toward complete legal equivalence between relationship by adoption and relationship by blood. At present, however, such equivalence …

The Conflict Of Laws: A Comparative Study. Volume One. Introduction: Family Law, Ernst Rabel

Michigan Legal Studies Series

Full application of comparative methods to the law of conflicts requires a working plan of some magnitude. We ought to take stock of the conflicts rules existing in the different countries of the world, state their similarities or dissimilarities, and investigate their purposes and effects. The solutions thus ascertained should moreover be subjected to an estimation of their usefulness, by the standards appropriate to their natural objective. Conflicts rules have to place private life and business relations upon the legal background suitable to satisfactory intercourse among states and nations. They are valuable to the extent that their practical functioning, rather …

Husband And Wife--Memorandum On The Mississippi Woman's Law Of 1839, Elizabeth Gaspar Brown

Michigan Law Review

In retrospect, it seems a logical development that married women in the United States should have acquired substantial legal equality with men. The conditions of pioneer life, the relatively high sentimental value placed upon women, the increasing degree of social and domestic freedom which American women enjoyed-all were incompatible with the strict theories of the common law which placed a married woman and her property under the absolute control of her husband.

The Bones Of Haddock V. Haddock, Harold Wright Holt

Michigan Law Review

It would not be fitting to say in the language of the stage that Williams v. North Carolina has drawn the curtain on Haddock v. Haddock. Rather we will shift the metaphor to say that the recent case from North Carolina has largely stripped the flesh from the earlier decision. Yet the bones of Haddock v. Haddock remain unbleached and unpulverized. Just as persons with mechanical turn of mind may frame from blocks of wood puzzles of readjustment and resetting, so courts in states that do not favor free and easy termination of marriage may still find in the …

Husband And Wife-Antenuptial Contracts, B. Bernard Wolson

Michigan Law Review

Prior to the enactment of the statute of uses the wife's dower could not be bargained away. Thus dower constituted a clog upon alienation. Antenuptial contracts therefore were not recognized. However, with the passing of the statute of uses, jointures came into existence as means of barring dower and making alienation free. Jointures were of two kinds, viz., legal and equitable. As the law developed in England both types were recognized; but as the law developed in the United States, statutes were enacted specifically providing for jointures and antenuptial contracts. Our courts generally considered them as equitable in nature. These …

Divorce - Alimony - Enforcement And Interpretation Of Foreign Decree For Payment Of Alimony In Installments, David Davidoff

Michigan Law Review

Plaintiff brought suit in Georgia to enforce a final divorce decree obtained by her husband in Florida. The decree granted plaintiff $30 a week for the support of herself and three minor children placed in her custody. It further provided that if the plaintiff should remarry, the weekly payments should be reduced to $22.50, and that when any child married or reached maturity, the weekly payments should be reduced $7.50 for each such child. Plaintiff sought to recover $30 per week for 129 weeks. Her husband claimed that plaintiff should recover only $7.50 per week for her own support because …

Conditions And Limitations In Restraint Of Marriage, Olin Browder Jr.

Michigan Law Review

From ancient times it has been a practice of testators to provide for the termination of a devised estate upon the marriage of the devisee, or to make their gifts conditional upon a beneficiary's marrying in a prescribed manner. In this way, a parent may hope to extend beyond his death his influence over recalcitrant or irresponsible offspring. But restraints on marriage may have other purposes. More often than not, a testator, by limiting an estate until marriage or by providing for forfeiture upon marriage, may merely seek to assure the maintenance of a female beneficiary until a husband assumes …

Husband And Wife-Wife's Right To Recover For Loss Of "Consortium" Due To Injury To Husband From Wrongful Sale Of Liquor, William C. Whitehead

Michigan Law Review

Plaintiff sued for loss of her right of consortium occasioned by the illness and death of her husband as a result of a sale of liquor by defendant in violation of a state statute. Defendant demurred on the ground that there was no cause of action granted by the statute for damages flowing from such an illegal sale. Held, an action for injury to the wife's right of consortium was available at common law. Swanson v. Ball, (S. D. 1940) 290 N. W. 482.

Any More Light On Haddock V. Haddock? The Problem Of Domicil In Divorce, Harold Wright Holt

Michigan Law Review

AT first glance it seems a work of foolhardiness or of supererogation to embark upon a rediscussion of any problems arising from Haddock v. Haddock. True, the decision of the majority of the Supreme Court in that case has not won wholehearted support from the bench or legal profession. True it is, also, that collusive divorces still flourish. These considerations alone might, perhaps, lead the reader to concede that it would not be unfruitful to speculate upon an eventual modification of some of the principles which the Court in that case approved. If, however, further justification is demanded of …

Injunctions - Power To Restrain Foreign Divorce Proceedings Declaratory Judgment As Adequate Legal Remedy, Michigan Law Review

Michigan Law Review

Plaintiff petitioned a New York court to restrain her husband from prosecuting an action for divorce in a Florida court, alleging that the parties were married in New York, had lived there as husband and wife for twelve years, were still residents of New York, and that the defendant's business was located in the state. The complaint also alleged that the defendant had abandoned the plaintiff without cause; that plaintiff could not bear the expense of defending the Florida action and, in the event of judgment, would lose her status as wife and her concomitant property rights. Held, this …

The Revision Of The Treaties Of Montevideo On The Law Of Conflicts, Ernst Rabel

Michigan Law Review

In its issue of July 1940, the Revista Juridica Argentina of Buenos Aires has published the new "Tratados de Derecho Internacional Privado" of Montevideo concluded in 1939 and 1940. We are grateful to this review for apprising us of a significant event in the field of international codification.

Appeal And Error - Bad Faith Of Counsel As A Basis For Granting A New Trial Where Fact That Defendant Was Insured Was Brought To Attention Of Jury, Raymond H. Rapaport

Michigan Law Review

It is generally agreed that the jury in a personal injury action should not be informed that the defendant is covered by indemnity insurance. The reasons for the rule are that the matter of insurance is irrelevant, and that the exposition of its existence is prejudicial. The jury is likely to grant more and larger verdicts for the plaintiff when it is known that an insurance company, rather than the individual defendant being tried, will have to pay the judgment. However, the fact that the defendant is insured reaches the jury in a multitude of ways. While direct evidence of …

Adoption - Effect On Adoption Proceeding Of Prior Consent Of Parent, Felicia I. Hmiel

Michigan Law Review

In 1923 the mother of an illegitimate child surrendered the child to the Children's Home Society and signed an agreement consenting to adoption by any parents chosen by the institution. In 1926 in an adoption proceeding, the child was adopted by the plaintiff's intestate with the society's consent, but with no consent of the mother other than that given in 1923. Upon the death of the intestate in 1936 the plaintiffs, the natural heirs at law, brought suit to set aside the adoption proceedings as being void for lack of parent's consent. Held, that the general consent given by …

Automobiles - Husband's Liability For Wife's Negligence While Driving Family Auto - "Family Errand" And "Family Purpose" Doctrines - Illinois Rule, Michigan Law Review

Michigan Law Review

Plaintiff's automobile was damaged by collision with an automobile belonging to the defendant while being driven by defendant's wife who was on an errand to purchase a twenty-five cent Hallowe'en party dress for her daughter. The accident was caused by the negligence of the defendant's wife. The defendant, his wife, and their child were living together, and the wife's sole income was derived from her husband, and from this she was to provide clothing and meet other expenses for the child. The circuit court gave judgment of damages to the plaintiff and the defendant appeals. Held, the plaintiff could …

Marriage And Divorce - Power Of Court To Modify Decree For Alimony Or Property Settlement As Affected By Agreement Of The Parties, Roy L. Rogers

Michigan Law Review

Contracts settling the property interests of a husband and wife or providing for support of the wife or for both of these ends are no doubt valid in all jurisdictions where the parties may contract with each other if the purpose is not to facilitate divorce or future separation. Even at common law, separation agreements could be made, however, through the intervention of a trustee. If not invalid, the contract may ordinarily be enforced in an action on the promise. But, when a divorce is decreed, it is quite often the practice to incorporate in the divorce decree the provisions …

Marriage And Divorce - Gross Neglect Of Duty As A Ground For Divorce - Wife's Separate Employment Causing Neglect Of Household Duties, Oscar Freedenberg

Michigan Law Review

The husband, plaintiff in a divorce action, alleged that his wife's employment, against his will, caused her to become irritable, unpleasant and quarrelsome and to neglect her household tasks. Held, that the petition states a cause of action on the ground of gross neglect of duty or extreme cruelty under the Ohio statute, but that the proof fails to bear out the plaintiff's allegations. Winnard v. Winnard, 62 Ohio App. 351, 23 N. E. (2d) 977 (1939).

Trusts-Right Of Divorced Wife Of Beneficiary Of Spendthrift Trust To Reach The Beneficiary's Interest In The Trust For Alimony And Support For Children, W. Wallace Kent

Michigan Law Review

P, divorced wife of D, brought this action for alimony and for support money for her children. The object of the action was to reach the income from a spendthrift trust created for the benefit of D and his present wife and children in the will of D's mother. The will specifically provided that none of the proceeds of the trust were to go to P or her child. Held, the settlor had the right to devise her property in any manner she chose. There is nothing in the statutes or decisions of Wisconsin which forbid …

Torts - Infants - Immunity Arising From Family Relationship, Michigan Law Review

Michigan Law Review

Plaintiff, a twelve year old boy, was injured in an automobile accident by the admitted negligence of defendant, his sixteen year old sister. Neither child had a separate estate, both were unemancipated, unmarried, and were living at home with their parents. Held, plaintiff could recover. Rozell v. Rozell, 256 App. Div. 61, 8 N .Y. S. (2d) 901 (1939), affd. (N. Y. 1939) 22 N. E. (2d) 254.

Torts - Joint Tortfeasors - Husband And Wife - Torts Between Spouses - Immunity Of Third Persons, Michigan Law Review

Michigan Law Review

Plaintiff sued defendants, including plaintiff's husband, for jointly causing a false charge of adultery to be made against plaintiff in a divorce suit. The defendants' demurrer to the complaint was sustained in the trial court as to each and all of the defendants. Held, that although plaintiff's husband was immune from liability, a cause of action had been made out against all the rest of the defendants, and the judgment in their favor was reversed. Ewald v. Lane, (App. D. C. 1939) 104 F. (2d) 222.

Gifts - Marriage And Divorce - Restitution Of Gifts Given In Contemplation Of Marriage, Michigan Law Review

Michigan Law Review

Plaintiff became engaged to Loretta Burns in 1914 and gave her a diamond ring. This engagement was ended in 1917 and the ring returned. A period of estrangement followed. In 1921, plaintiff gave her a dinner ring, in 1926 a wrist watch, in 1927 an onyx ring, in 1928 a diamond ring. Each gift was given on Christmas Eve. Loretta died in 1935, leaving defendants as heirs and next of kin. Plaintiff filed a suit in replevin and later a declaration in trover and conversion for these gifts. Held, after concluding that the evidence warranted a finding of an …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Reference has already been made to the difficulties arising when the widow has elected to take under the will, and for some reason or other, intestate property also remains to be disposed. Further difficulty arises in those cases where the widow elects to take against the will and yet claims to share in intestate property. Shall her claim be allowed under those circumstances?

Parent And Child - Duty Of Mother To Support Child When Father Is Alive, Thomas E. Wilson

Michigan Law Review

Plaintiff obtained a divorce from defendant, and at the time of the divorce voluntarily undertook to care for and support their twenty-one year old son, who was afflicted with tuberculosis and unable to support himself. The son resided with his mother until his death. She instituted this action against the father to recover for the care and support of the son from the time of the divorce until his death and for funeral expenses, relying upon a statute imposing upon specified classes or relatives of poor persons a duty to maintain them, which statute the plaintiff contended imposed a duty …

The Widow's Right Of Election In The Estate Of Her Husband, Elbridge D. Phelps

Michigan Law Review

Before launching into the discussion proper, and in order to avoid confusion and misunderstanding later on, it is deemed wise at once to mark out boundaries within which it is proposed to confine the treatment of the subject here involved. Accordingly, in that which follows, attention will be centered largely on the necessity for election by a widow under modern statutes which allow her to take against her husband's will, and on the effects of her election or non-election upon her interest in her husband's estate. In so far as a surviving husband has identical rights, they will be adverted …

Municipal Corporations - Police Power - Regulation Of Auctions, Keith P. Bondurant

Michigan Law Review

A municipal ordinance provided that only licensed auctioneers or owners of the goods, after furnishing bond, could conduct auction sales in the city. It further required the seller to accept the best of two or more bids, required labeling of all articles to be sold, advance published notice of the auction, a display and opportunity for examination before the sale, and the confining of the sale to certain hours of the day. Plaintiff, a corporation occasionally selling furniture by auction at its permanent business location, objected to these restrictions as an arbitrary interference with its conduct of a lawful trade. …

Taxation - Federal Estate Tax - Claims Arising Out Of An Antenuptial Agreement As Deductions From Gross Estate, Charles E. Nadeau

Michigan Law Review

An antenuptial agreement provided that in the event the wife survived her husband she would receive $50,000 in lieu of her dower rights. After his death the executors paid this sum, and then sought to deduct it from the gross estate as a claim against the estate. In affirming the Board of Tax Appeals the court held that marriage and relinquishment of dower were not "an adequate and full consideration in money or money's worth" and hence the claims were not deductible under the Revenue Act of 1926. Empire Trust Co. v. Commissioner of Internal Revenue, (C. C. A. …

Restricted Testation In New Zealand, Australia And Canada, Joseph Dainow

Michigan Law Review

One of the long accepted differences between the common law and the civil law has been the freedom of testamentary disposition of the former as contrasted with the limitations of the latter. Thus, while the continental testator was limited in the amount of property that he could leave away from the members of his immediate family, the Englishman could cut them all off without a penny. In other common-law countries the same liberty was continued; but recent years have witnessed important departures.

Parent And Child - Effect Of Adoption On Duty Of: Parent To Support Child, Marcus L. Plant

Michigan Law Review

The defendant, father of the child whose support was in question, was-divorced by the plaintiff, mother of the child, in 1927. At that time, with the consent of both parties, the maternal grandparents adopted the child. In 1931 the grandfather died insolvent, and in 1933 the grandmother remarried and left the state. In 1934 the plaintiff adopted the child, and brought suit against the defendant for its support. The court entered an order requiring him to pay ten dollars per week for that purpose. After compliance for several months the defendant stopped payment, and in contempt proceedings protested the validity …

Negligence - Wrongful Death Act-Wife's Death Resulting From Husband's Negligence, Virginia M. Renz

Michigan Law Review

The Pennsylvania wrongful death statute provides that whenever death shall be occasioned by unlawful violence or negligence and no suit has been brought by the party injured during his or her life, the husband, widow, children, or parents of the deceased shall be entitled to recover for damages for injuries causing the death. Under this statute a father sued to recover damages for the death of his daughter which resulted from an automobile accident caused by the negligence of her husband. Held, the wife's disability to sue her husband for tort is personal; it does not bar recovery of …