Gilbert v. Hayward

• Decision Date: 15 December 1914
• Docket Number: Nos. 4782, 289.,s. 4782, 289.
• Citation: 37 R.I. 303,92 A. 625
• Parties: GILBERT v. HAYWARD et al. HAYWARD v. GILBERT et al.
• Court: Rhode Island Supreme Court

92 A. 625

37 R.I. 303

GILBERT

v. HAYWARD et al.

HAYWARD

v. GILBERT et al.

Nos. 4782, 289.

Supreme Court of Rhode Island.

Dec. 15, 1914.

Exceptions and Appeal from Superior Court, Providence and Bristol Counties; John Doran and Willard B. Tanner, Judges.

Two suits, one by Mary E. Gilbert against Annie P. Hayward, the other by Annie P. Hayward against Mary E. Gilbert and others. From the decree, both parties except. Modified.

Edwin C. Pierce, of Providence, for Gilbert and others.

Thomas L. Heffernan, of Providence, for Hayward, and others.

BAKER, J. These two causes have been heard together. The first is an appeal from a decree of the municipal court of the city of Providence entered the 5th day of December, A. D. 1913, allowing the claim of Annie P. Hayward against the estate of her deceased husband, Benjamin P. Hayward, in the sum of $28,148. Prom this decree Mary E. Gilbert, the only child of said Benjamin and said Annie, claimed an appeal. The appeal was heard in the superior court by Mr. Justice Doran without a jury and his decision was in favor of said Annie in the sum of $14,101. To this decision both parties filed exceptions, and the cause has been heard before this court on bills of exception of both appellant and appellee.

The claim of Annie P. Hayward filed in the municipal court was for unpaid alimony awarded to her by a decree entered in the Supreme Court of this state in Providence county on the 6th day of June, 1874, granting her a divorce from the bed and board of her said husband, and giving her the custody of their infant daughter, Mary Elizabeth Hayward, now the said Mary E. Gilbert.

The terms of the award of alimony were as follows:

"And it is further ordered, adjudged, and decreed that said Benjamin P. Hayward pay to the clerk of the Supreme Court in the county of Providence to and for the use of said Anna P. Hayward, and for a support and maintenance to her and her said daughter, the sum of $8 per week, and at that rate per week, payable on the first day of every month until the further order of this court."

The statute in referring to the allowance for the support of a wife in such cases uses the words "a separate maintenance" instead of the word "alimony," but inasmuch as this last term may be defined thus:

"Alimony is the allowance which a husband may be compelled to pay to his wife for her maintenance when she is living apart from him or has been divorced" (1 R. C. L. 864)

—for convenience the term "alimony" will be used in referring to the allowance granted by this decree.

The parties to the divorce were never reconciled. The decree was never modified. No payments were made under it by said Benjamin after the latter part of 1875. He died October 6, 1912, and thereafter said Annie was appointed administratrix on his estate. The amended claim of the appellee as filed in the municipal court covers the period included between October 1, 1878, and October 1, 1912, with interest on the several installments from the time they respectively became due. The decision of the superior court applies to the claim the statute of limitations relative to actions of debt on judgment, and allows so much of the claim as accrued in the 20 years next preceding the death of said Benjamin, with interest on the monthly installments to May 26, 1914, the day before the decision was filed.

In the appeal from the decree of the municipal court the appellant stated 11 reasons of appeal, the first, second, and eleventh of which were general, and the other eight specific, statements of error. The reasons of appeal were not amended or added to in the superior court. The appellant's bill of exceptions sets out in detail as the grounds of her exception to the decision of the superior court what are, in substance, the said reasons of appeal, and all of them, with one new ground or reason. This new ground of exception, numbered eleventh in the bill of exceptions, is that the appellee "is equitably estopped by her conduct from claiming any arrears of alimony." We think this ground of exception is, upon the evidence, without merit. But further than that we are of the opinion that the provisions of paragraph "second" of section 1 of chapter 311 of the General Laws, restricting an appellant from a decree of a court of probate in the superior court to "his reasons of appeal specifically stated," prevents the raising in this court for the first time of a question going to the merits of the appeal not included in the reasons of appeal. The first and second grounds of exception need no separate discussion, as they are identical with the general statements of error in the reasons of appeal from the decree of the municipal court, and are covered by the other grounds of exception.

The third ground of exception raises the question of whether or not the decree in the divorce proceeding is such a judgment for debt that the wife could sue the husband thereon in law or equity, and constitutes a maintainable claim against the estate of Benjamin F. Hayward, and also the question of whether the enforcement of such a claim is not exclusively in the court granting the divorce, either in the divorce case itself or in a suit in equity auxiliary thereto. The last question is the simpler, and may be disposed of first.

Section 3 of chapter 314 of the General Laws provides that:

"All persons having claims, including pending suits, * * * and claims of the executor or administrator, against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court."

The same section provides that claims not so filed within the time limited therefor shall be barred, except in cases of "accident, mistake and unforeseen cause." Section 10 of the same chapter provides that if "an executor or administrator shall file a claim which he had against the testator or intestate in his lifetime, the probate court shall examine and determine such claim." This procedure was followed in the present case. From the operation of this statute no claims are specifically excepted, and, taking into consideration the whole statutory schemes for the early settlement of estates of deceased persons in courts of probate, the reasonable and only conclusion is that all claims against such estates are required to be filed in the office of the clerk of said court. This is the necessary initial step in their enforcement. Lawton, Petr., 12 R. I. 210, is not precisely in point as an authority, as that case was under a different statute, but it is of value by way of analogy. We are of opinion, therefore, that the method of procedure for the enforcement of her claim followed by the appellee was the only correct one.

But irrespective of the mode of enforcement, the important question is whether or not this decree in an action for divorce a mensa et thoro, providing for future monthly payments of alimony until further order of the court creates or constitutes an enforceable debt. In the United States the weight of authority is that debt may be maintained on a decree, either domestic or foreign, for the payment of a specific sum of money, unconnected with any condition. 5 Ency. Pl. & Pr. 1069, and cases cited; Wagner v. Wagner, 26 R. I. 27, 57 Atl. 1058, 65 L. R. A. 816, 3 Ann. Cas. 578; 2 Black on Judgments (2d Ed.) § 962; Freeman on Judgments, § 434; Page v. Page, 189 Mass. at page 87, 75 N. E. at page 92, 4 Ann. Cas. 296. There has been a diversity of decision as to whether an action would lie on a decree requiring payment of future installments of alimony. The question has usually arisen, when an action has been brought upon such a decree in a foreign jurisdiction, under section 1 of article 4 of the Constitution of the United States, the "full faith and credit" section so-called. Decisions of the Supreme Court of the United States interpreting this section of the federal Constitution are authoritative and binding upon all other courts of this country. When, as in the present case, no question is raised giving jurisdiction to the federal court, its decisions are not necessarily binding. Nevertheless, from the recognized eminence and ability of this national court of last resort, great weight as an authority is naturally given them by other courts. We will therefore consider these decisions in connection with the question now discussed.

Barber v. Barber, 62 U. S. (21 How.) 582,16 L. Ed. 226, was decided in 1858. In that case the wife had obtained in 1847 in New York, where the parties then resided, divorce a mensa et thoro. The decree provided for the payment of alimony of a definite amount, computed to a fixed date, and thereafter in stated quarterly installments. Without paying any alimony the husband left New York and went to Wisconsin, where some years later the wife instituted proceedings in equity in the United tSates District Court for the recovery of arrears of alimony and obtained a decree for such arrears with interest, amounting to nearly $6,000. The Supreme Court of the United States upheld the finding, saying, on page 595 of 21 How. (16 L. Ed. 226):

"Alimony decreed to a wife in a divorce of 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."

This was long regarded as a leading case. In Arrington v. Arrington, 127 N. C. 190, 37 S. E. 212, 52 L. R. A. 201, 80 Am. St. Rep. 791 (decided in 1900), a wife sought to enforce a decree for alimony obtained in 1879 in Illinois, requiring the payment semiannually until further order of the court of stated amounts, one for her own support and the other for the support of her minor children. When the proceedings were instituted in North Carolina the arrears exceeded $7,000, and the children were all of age. The decree was held to be entitled to full faith and credit, Barber v. Barber, supra, being cited as an authority, and the plaintiff obtained judgment for so much due under said decree...