President of Harvard College v. Head , 111 Mass. 209 ( 1872 )

Chapman, C. J.

The husband’s assignment of the annuity to the wife before marriage is in terms limited “ during the continuance of said marriage.” Any legal termination of the marriage is obviously within those terms. As it has been terminated by a decree of divorce by the court of the domicil of the parties, the right of the wife to the annuity terminated under the contract at the time of passing the decree. This decree does not continue the annuity by way of alimony. Nor is the wife entitled to its continuance on the ground that the husband’s misconduct was the cause of the divorce. The doctrine contended for, that he who prevents the performance of a contract or condition shall not take advantage of its non-performance, does not apply to a case like this. The further continuance of the marriage was prevented by the act of the court; and if the husband was the guilty party, the court was authorized to take into consideration all the circumstances of the case, and fix the amount of alimony with reference to them. Beeree for John A. Sead.