Biscayne Trust Co. v. American Security & Trust Co.

• Decision Date: 26 May 1927
• Docket Number: No. 4485.,4485.
• Parties: BISCAYNE TRUST CO. v. AMERICAN SECURITY & TRUST CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

57 App. DC 251, 20 F.2d 267 (1927)

BISCAYNE TRUST CO. v. AMERICAN SECURITY & TRUST CO.

No. 4485.

Court of Appeals of District of Columbia.

Submitted January 7, 1927.

Decided May 26, 1927.

D. T. Wright and Philip Ershler, both of Washington, D. C., for appellant.

P. E. Lesh, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This appeal challenges a decree of the lower court granting a bill of revivor filed by the executors of a deceased wife against her surviving husband, for alimony alleged to be due to her at the time of her decease. Since the appeal was taken the husband also has departed this life, and his estate is represented herein by an administrator.

In the year 1904, Emma C. Bliss, as plaintiff, brought suit for divorce and alimony against her husband, Alonzo O. Bliss, and on March 31st of that year the court granted her an absolute divorce, and decreed that the defendant should pay her as alimony $1,000 on or before the 1st day of each month thereafter, beginning with April 1, 1904, and continuing during her natural life. It was expressly provided in the decree that it should be without prejudice to the right of the complainant to apply for an increase of the monthly payments, or the right of the defendant to apply for a reduction thereof, if there should thereafter be a substantial change in his financial condition.

Afterwards, to wit, on February 24, 1919, the plaintiff, Emma C. Bliss, filed a petition in the same case, reciting the foregoing facts, and alleging that no application had ever been made to the court by either party for any modification in the matter of the monthly payments, and averring that in December, 1917, the defendant, by means of untrue and misleading statements, conveyed to plaintiff through their son, to the effect that defendant's annual income had substantially decreased, induced plaintiff to consent to the reduction of the monthly payments aforesaid from the sum of $1,000 to $500 per month, and that from December, 1917, until March, 1918, plaintiff accepted the sum of $500 each month as and for her monthly alimony. Plaintiff alleged that in February or March, 1918, she first learned that defendant's income had been improving, instead of decreasing, whereupon she demanded full payment of the alimony as allowed by the court, to wit, the sum of $1,000 per month, both for arrears of past alimony and for future payments thereof. Plaintiff prayed for an order requiring defendant forthwith to pay her the deficiency accrued because of the reduction aforesaid, and thereafter to pay her the full sum of $1,000 per month as provided by the court's decree.

No pleading of any kind was filed by defendant to this petition, and on March 10, 1919, it was ordered by the court that the defendant should pay to plaintiff the sum of $7,500, as arrears of alimony accrued between December, 1917, and February, 1919, and thereafter should continue to pay the sum of $1,000 monthly to plaintiff in accordance with the court's prior decree.

Afterwards, to wit, on January 25, 1922, the plaintiff, Emma C. Bliss, departed this life, and on April 28, 1923, the appellee, as executor of her estate, filed a bill of revivor in the case, reciting the foregoing facts, and alleging that the defendant, notwithstanding the court's order of March 10, 1919, had failed to pay the sum of $7,500 arrears, and had failed to pay $1,000 per month as required thereby, but had continued to pay no more than $500 per month, from and after the date of the decree up to the date of plaintiff's decease. The executor alleged accordingly that the sum of $29,152.40 was due to plaintiff's estate as of January 25, 1923, and that interest should be computed on $25,000 thereof from that date to the time of payment. The executor prayed that an unconditional decree for the payment of the sum stated be entered against the defendant.

The defendant thereupon filed a motion to dismiss the bill of revivor, which was denied by the court. He then answered, denying the claim of indebtedness set up in the bill, alleging that during the lifetime of the plaintiff, and after the order of the court was entered on March 10, 1919, an agreement was entered into between the defendant and plaintiff that, if he would not appeal from...