Foy v. Smith's Estate

• Decision Date: 05 August 1938
• Docket Number: 3225.
• Citation: 81 P.2d 1065,58 Nev. 371
• Parties: FOY v. SMITH'S ESTATE et al.
• Court: Nevada Supreme Court

81 P.2d 1065

58 Nev. 371

FOY v. SMITH'S ESTATE et al.

No. 3225.

Supreme Court of Nevada

August 5, 1938

Appeal from District Court, Second District, Washoe County; Thos. F Moran, Judge.

Action by Mary E. Smith against the estate of George Edmund Smith and others to set aside a decree of divorce which plaintiff had obtained. From a decree adverse to plaintiff, plaintiff appealed, and on the death of plaintiff, John Bernard Foy, as special administrator of the deceased plaintiff's estate was substituted as appellant.

Appeal dismissed.

John Bernard Foy, of Reno, for appellant.

E. F Lunsford and Myron R. Adams, both of Reno, for respondents.

COLEMAN Chief Justice.

This case is before the Court on a motion to dismiss the appeal.

Mary E. Smith (to whom we will refer as plaintiff) instituted this suit to set aside a decree of divorce which she obtained June 16, 1930, against her husband George Edmund Smith (to whom we will refer hereinafter as defendant), a resident of New York, in the Second Judicial District Court, in and for Washoe County, Nevada. She asked to have the decree set aside upon the grounds of fraud, duress and coercion alleged to have been practiced upon her by the said defendant. In her complaint she also attacked an agreement entered into between the plaintiff and defendant on February 10, 1930, whereby she accepted $600 monthly in lieu of her claim for support, upon the ground that he misrepresented his property holdings at the time they entered into the agreement to have been $183,200, whereas it was $2,000,000, and seeks damages in the sum of $347,600, representing what she claimed to be the difference between the amount she agreed to accept under the agreement and the amount to which she would be entitled to, or the sum of $5,000 per month for the rest of her life. The prayer of her complaint is that the said decree of divorce be set aside: that she have judgment for $347,000; and that defendants be required to set aside a sufficient fund to pay plaintiff $5,000 per month for the balance of her life.

The plaintiff appealed from an order sustaining a demurrer to the amended complaint, and a judgment dismissing the suit.

After the appeal was perfected, the plaintiff died. Subsequently a special administrator of her estate was appointed. Thereafter, on motion of the special administrator, an order was made by this Court that he be substituted as appellant.

The respondents base their motion to dismiss upon two grounds--the first being that the suit abated upon the death of the plaintiff, since, as contended, the alleged action or cause of action is of such a nature that the same does not survive.

It is the theory of respondents that had a judgment been entered in the lower court in favor of the plaintiff prior to her death, such judgment would have become the property of her estate, in which case her legal representative could be substituted on an appeal by the adverse party; but that the right of support, being personal to the wife and not having been reduced to a judgment during her lifetime, it must necessarily terminate at her death.

The plaintiff and George Edmund Smith were married in Buffalo, New York, in 1905, where they continued to reside until the plaintiff, some time in 1930, came to Nevada and established her residence and instituted her suit for a divorce, resulting in a decree in her favor. So far as appears, there was no community property, nor other property, in this state, belonging to either of the parties to the divorce suit, and whatever property defendant owned was his sole property, so far as we are advised.

George Edmund Smith died in March, 1936, after which this suit was instituted.

It does not appear from the record that any provision was made in the judgment and decree in said divorce suit for the support of the plaintiff, the same having been arranged solely by said agreement.

As we interpret the complaint in this suit, it is based entirely upon the theory of plaintiff's right to support in a monthly sum to be arrived at upon the basis of an assumed income from an estate valued at $2,000,000. It is not clear whether the plaintiff relies upon the law of New York or the law of Nevada as a basis for arriving at the right conclusion. Our attention is directed to a certain provision of the statute law of New York, and our attention is also directed to the law of this state as to the right of an injured wife, obtaining a divorce, for support. There has been no proof herein of the law of New York, and we will not presume that it is different from that of Nevada.

Section 9465, N.C.L., which is as it was when the divorce in question was granted, so far as here material, reads: "When the marriage shall be dissolved by the husband being sentenced to imprisonment, and when a divorce shall be ordered for the...