Farrington v. Boston Safe Deposit & Trust Co.

• Citation: 280 Mass. 121,181 N.E. 779
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 08 July 1932
• Parties: FARRINGTON v. BOSTON SAFE DEPOSIT & TRUST CO.

280 Mass. 121

181 N.E. 779

FARRINGTON

v.BOSTON SAFE DEPOSIT & TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1932.

Appeal from Superior Court, Suffolk County; Fosdick, Judge.

Suit by Edith W. Farrington against the Boston Safe Deposit & Trust Company, executor. From the decree, plaintiff appeals.

Modified, and, as so modified, affirmed.

C. D. Bent, of Gardner, for appellant.

C. F. Rowley, of Boston, for appellee.

CROSBY, J.

This is an appeal by the libellant from a decree entered in the superior court on her petition to have an execution issue against assets in the hands of the executor of the estate of Robert D. Farrington for payments of alimony. The parties have agreed on all the material facts, have made the pleadings a part of the case, and have agreed that the court may draw proper inferences from the facts stated.

On November 28, 1911, the petitioner and Robert D. Farrington were married. On June 27, 1917, the petitioner, hereinafter referred to as the libellant or petitioner, obtained in the Suffolk superior court a decree for divorce from the libellee on the ground of adultery. The decree became absolute December 28, 1917. By this decree the libellee was ordered to convey certain real estate to the libellant; and it was further ordered that the libellee shall pay to the libellant the sum of $416.66 a month ‘during the term of her life, the first payment * * * to be made forthwith, the second payment * * * to be made on the first day of August, nineteen hundred and seventeen, and further payments of * * * [$416.66] to be made on the first day of each and every month thereafter. If, however, said libellant shall re-marry during the term of her life, then said payments of * * * [$416.66] shall cease upon said remarriage of said libellant.’ At the foot of the decree the following appears: ‘Assented to Edith W. Farrington Robert D. Farrington.’

Simultaneously with the execution of said decree, to wit, on June 27, 1917, with the knowledge of the court and as a part of the terms of settlement the libellee executed and delivered to William A. Morse, trustee for the benefit of the libellant, a bond in the sum of $50,000 binding himself, his heirs, executors and administrators to its payment and conditioned that he, Robert D. Farrington, (1) deliver to the libellant a deed of the above mentioned real estate; (2) release to the trustee for said Edith W. Farrington all his interest in the furniture, furnishings, and personal property on the premises with certain exceptions; (3) ‘pay to said William A. Morse, as Trustee for said Edith W. Farrington, and his successors and assigns, the sum of * * * ($416.66) a month during the lifetime of said Edith W. Farrington * * * in compliance with the decree of the Superior Court. * * * If, however, said Edith W. Farrington shall marry again during the term of her life, then said payments * * * shall cease * * *;’ (4) deliver to her a policy of insurance in the sum of $10,000 on the life of Robert D. Farrington, she to be the beneficiary therein, and he to pay the premiums thereon; (5) ‘make full, adequate and complete provision by will, or deed of trust, or by purchase of a annuity for the payment of said sum of * * * ($416.66) monthly to said William A. Morse, Trustee, as aforesaid, and his successors and assigns, for a period of ten years after the death of the said obligor, Robert D. Farrington, if the said Edith W. Farrington be then living and shall not have re-married. If the said Edith W. Farrington shall re-marry or shall decease during said ten years then said payments shall cease upon said re-marriage or upon said decease.’

The libellee died on November 4, 1930, as the result of a motor vehicle accident. By his will which was admitted to probate the Boston Safe Deposit and Trust Company was appointed executor. The will did not contain any provision to comply with clause 5 of the bond. The libellee during his lifetime had complied with all terms of the decree, except that he was in arrears in the payment due November 1, 1930. The payments were made to the trustee named in the bond. No payments under the decree or bond have been made since October, 1930. Farrington did not make any provision by will, trust deed, or annuity for the payments to the trustee required by the bond for ten years. However, he took out an insurance policy on his life for the benefit of the libellant upon which she has collected the sum of $10,000. At the time of his death he was forty-six years of age and the libellant was forty-three years old. She is still living and unmarried.

The petition was granted as to the payment due November 1, 1930, but dismissed as to payments alleged to be due from December 1, 1930, to October 1, 1931. This appeal presents the question of liability of the libellee's estate for payments under the divorce decree since his death. The executor contends that the decree entered in 1917 should be construed to mean that the monthly payments ordered were to be paid only by Farrington while living, and not to charge the assets of his estate for any payments after his death; that the estate is not bound to make any payments after the death of the libellee, but that the libellant's sole remedy is that to be asserted on her behalf by the trustee who is the obligee named in the bond.

It is settled in this commonwealth that a decree for alimony whether temporary or permanent can be granted only so far as authorized by the statutes. Parker v. Parker, 211 Mass. 139, 141, 97 N. E. 988. It was said in Rollins v. Gould, 244 Mass. 270, at pages 272, 273, 138 N. E. 815, 816, that ‘The general purpose of alimony, whether temporary or permanent, is to enforce the legal duty of a husband to provide for the support of his wife. Brown v. Brown, 222 Mass. 415, 111 N. E. 42. * * * Neither the decree, nor the agreement of March 18 contained any reference to the wife's rights upon the death of the husband.’ The general rule is well established in this commonwealth that a husband's duty to pay alimony for the support of his wife ceases with his death. Knapp v. Knapp, 134 Mass. 353;McIlroy v. McIlroy, 208 Mass. 458, 94 N. E. 696, Ann. Cas. 1912A, 934;Stone v. Duffy, 219 Mass. 178, and cases cited at page 182, 106 N. E. 595, 596. However, in none of the cases above referred to did the decree order the payment of alimony ‘during the * * * life’ of the wife. The fact that the parties in the present case assented to the terms of the decree, is not of importance; to decide otherwise would be on the theory that the court was decreeing specific performance of their contract. Moreover, an agreement between husband and wife as to alimony made even at the time of the entry of a decree nisi would not be enforceable under G. L. c. 209, § 2, as contracts between them would be a nulllity. Oakes v. Oakes, 266 Mass. 150, 165 a nullity. Oakes v. Oakes, 266 Mass. 150, 165 what the parties themselves had in...