Story Case

Mrs. Josephine Dufree owned a small plot of ground, which her husband repeatedly attempted to have her convey by deed to him. This she refused to do. Finally he threatened to cease to provide for her the necessaries of life if she did not convey to him the property. Thereupon, by way of compromise, she agreed to convey the property to him upon her death, providing he continued to support her. After her death, however, he learned that she had secretly made a will devising the land to her nephew. Dufree now asks that the contract be enforced against the nephew. Will this be done?

Ruling Court Case. Ryan Vs. Dockery, Volume 134 Wisconsin Reports, Page 431; Volume 15 Lawyers' Reports Annotated, Page 491

Eliza Ryan, prior to her marriage with the plaintiff, Edward Ryan, was a widow, owning some property. She was blind, lived alone, and consequently was in need of some one to take care of her. The jury found that before her marriage to Edward a contract was made between them by which Edward agreed to take care of, support and nurse her and otherwise see to her comfort as long as she should live; and she agreed, in return for such services, that he should have the use for life of all the property which she owned at her death. Soon thereafter Edward married her. They lived together for some time before she died. After her death he brought this action upon the contract above referred to, and demanded either the use of her property for life, or the reasonable value of his services during the time he cared for her.

Mr. Chief Justice "Winslow said in part:" The law requires a husband to support, care and provide comforts for his wife in sickness, as well as in health. This requirement is grounded upon principles of public policy. The husband cannot shirk it, even by contract with his wife, because the public welfare requires that society be thus protected so far as possible from the burden of supporting those of its numbers who are ordinarily expected to be wage earners, but may still be performing some of the most important duties pertaining to the social order."

It results from this that, when the plaintiff promised to care for, nurse and support, the deceased after marriage, he promised only to do that which the law required him to do in any event; and neither the doing of what one is in law bound to do, nor the promise so to do, is any consideration for another's promise.

The plaintiff could recover neither upon the express contract, nor upon one implied in law.

Ruling Law. Story Case Answer

The husband is under a legal obligation to support his wife during the continuance of the marriage relation. This obligation grows out of the marriage contract. Since he is under this obligation to support her, it follows that any contract by which he agrees to support her for a consideration is not binding upon her, even in states where she may be permitted to contract. Such a contract is without consideration; for he is binding himself to do only that which he is legally bound to do. This was true of the contract made between Mr. and Mrs. Dufree in the Story Case. There was no consideration from Dufree, since he was legally obliged to support his wife before making the contract. In fact, there is no contract and none can be enforced against the nephew.