Estate of Watrous

• Decision Date: 13 December 1928
• Docket Number: 153-1928
• Citation: 95 Pa.Super. 11
• Parties: Estate of Edwin A. Watrous, Deceased
• Court: Pennsylvania Superior Court

95 Pa.Super. 11

Estate of Edwin A. Watrous, Deceased

No. 153-1928

Superior Court of Pennsylvania

December 13, 1928

Argued October 10, 1928

Appeal by Annie Isadore Watrous from decree of O. C., Philadelphia County-1927, No. 1001, in the Estate of Edwin A. Watrous deceased.

Exceptions to the adjudication of an executrix's account. Before Henderson, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the claim for installments of alimony falling due after husband's death. Claimant appealed.

Error assigned, among others was the decree dismissing defendant's claim.

William E. Caveny, for appellant. -- A decree in divorce of a foreign state granting alimony in monthly installments during the life of the wife is enforcible in Pennsylvania against the estate of the husband for installments falling due after his death: Sistare v. Sistare, 218 U.S. 1; Beard v Beard, 57 Neb. 754; Storey v. Storey, 125 Ill 608; Isaacs v. Isaacs, 117 Va. 728; Smythe v. Banks, 73 Ga. 303.

John Stokes Adams, for appellee. -- A claim for alimony alleged to have fallen due after the death of the husband under a divorce decree of a foreign court cannot be maintained against his estate: Knapp v. Knapp, 134 Mass. 353; Lennahan v. O'Keefe, 107 Ill. 620; Lally v. Lally, 152 Wis. 56; McGechie v. McGechie, 43 Neb. 523; Moorehead's Estate, 289 Pa. 542; Audobon v. Shufeldt, 181 U.S. 575.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

Linn, J.

Edward Watrous, domiciled in Pennsylvania, died testate, July 8, 1926, leaving a widow to whom letters testamentary were granted. At the audit of her account as executrix, May 5, 1927, a claim for alimony was presented by a former wife who had obtained an absolute divorce from Watrous in 1906 in the District Court of Douglas County, Nebraska, for desertion in a suit in which he had appeared and answered. She claimed 10 installments of alimony at the rate of $ 110 per month for the 10 months after his death beginning August 1, 1926 to May, 1927, inclusive, with interest, on an authenticated copy of the decree to be found in the reporter's statement of the case. She also asked to have a fund set aside to secure the payment of future installments. The court below held that the right to alimony ceased with the death of Watrous and dismissed the claim.

The divorce decree provided: " It is further ordered and adjudged that the defendant pay to the plaintiff in lieu of her dower interest and right in any property he has, or may have, the sum of $ 110 per month as alimony as long as she lives, or until she remarries."

That decree is entitled to full faith and credit as required by Article IV, section 1, of the Constitution: " .... where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber case 'alimony decreed to a wife in a divorce for separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is'." Sistare v. Sistare, 218 U.S. 1, 17, 54 L.Ed. 905, 30 S.Ct. 682.

No evidence was offered defining the effect given to such decree in Nebraska after the death of a defendant not in default. In the brief for the appellee, it is suggested that the order was not authorized by the law of Nebraska and McGechie v. McGechie, 43 Neb. 523, 61 N.W. 692 is cited; it is true that the court in that case said: " Alimony should not be awarded a wife in installments during her life. We do not approve of alimony in the form of annuity or requiring the husband to pay a fixed sum each month during the life of the other party, or for an indefinite period of time." Without referring to what was said in Hays v. Hays, 75 Neb. 728, 106 N.W. 773, in limitation of the dictum quoted from the McGechie case, it is sufficient for us that the decree was not appealed from; as the jurisdiction of the court over the subject matter and over the defendant appears, we must accept the decree as it stood when certified: Laing v. Rigney, 160 U.S. 531, 542, 40 L.Ed. 525, 16 S.Ct. 366.

" By the Constitution and the Act of Congress, requiring the faith and credit to be given to a judgment of the court of another state that it has in the state where it was rendered, it was long ago declared by this court: 'The judgment is made a debt of record, not examinable upon its merits; but it does not carry with it, into another state, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another state, it must be made a judgment there; and can only be executed in the latter as its laws may permit.' McElmoyle v. Cohen, 13 Peters 312, 325; Thompson v. Whitman, 18 Wall. 457, 463, 21 L.Ed. 897; Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292, 32 L.Ed. 239, 8 S.Ct. 1370; " Lynde v. Lynde, 181 U.S. 183, 186, 45 L.Ed. 810, 21 S.Ct. 555.

Section 3169, Com. Stat. Neb. (1903) provides: " All judgments and orders for payment of alimony .... shall be liens upon property in like manner as in other actions, and may in the same manner be enforced and collected by execution and proceedings in aid thereof, or other action or process as other judgments." See also Nygren v. Nygren, 42 Neb. 408, 60 N.W. 885.

Our question then, is -- treating the decree as prima facie evidence of defendant's liability for alimony, (it is not contended that it was obtained by fraud, or that the court lacked jurisdiction) does it impose liability on the husband's estate for monthly installments accruing after his death? Alimony is support money; the foundation for an award of alimony is the husband's obligation to support his wife, a duty that ends with his death.

Section 3188, Comp. Stat. Nebraska (1903) provides: " Upon every divorce from the bonds of matrimony for any cause excepting that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects restored or awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate as it shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties and all other circumstances of the case." That statute would seem to authorize an award payable only during his lifetime and not to authorize a charge on a husband's property after his death for sums thereafter accruing. There is, however, a statute which does authorize such a charge, though not when the cause of divorce is desertion, as here. In Tatro v. Tatro, 18 Neb. 395, 25 N.W. 571 (1885) a decree for alimony was...