Lennahan v. O'keefe

• Decision Date: 20 November 1883
• Parties: JOHANNA LENNAHANv.MARY O'KEEFE et al.
• Court: Illinois Supreme Court

107 Ill. 620

1883 WL 10343 (Ill.)

JOHANNA LENNAHAN

v.MARY O'KEEFE et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Mr. J. E. MCPHERRAN, and Mr. C. J. JOHNSON, for the appellant:

The view that the alimony of appellant abated on the death of John Lennahan is not supported by equitable reasons. But does it, as a matter of law, cease at the husband's death?

In Dinet v. Eigenmann, 80 Ill. 275, it is held that a sum awarded to a wife after divorce becomes a debt from her former husband, and upon her death before payment thereof the sum due her passes to her legal representatives. See, also, Miller v. Clark, 23 Ind. 870.

The statute authorizes such alimony as may be just and proper, and it can not be unjust and improper to compel a husband whose wife has been driven from her home by his cruelty, and defilement of the marriage bed, to provide her a suitable support for the remainder of her life, instead of permitting him to dispose of the property to strangers at his death, leaving her entirely destitute. Burr v. Burr, 10 Paige, 20.

In some of the States, as in New York, the courts hold that where a divorce a vinculo is granted for the fault of the husband, the alimony should continue to the wife for and during her natural life. Miller v. Miller, 6 Johns. Ch. 93; Barrere v. Barrere, 4 Id. 187; Pickford v. Pickford, 1 Paige, 274. The Supreme Court of Illinois has not expressly passed upon this question in any case reported. It has held, however, in cases where there was no evidence that the wife brought any money to her husband at marriage, or where the parties to the suit had agreed to the decree, but simply where the wife had, by her labor and industry, contributed materially to the acquisition of property, that it was proper to award alimony in gross, and to make it payable in several installments within a short period. Dinet v. Eigenmann, 80 Ill. 274; Draper v. Draper, 68 Id. 17; Plaster v. Plaster, 47 Id. 290; Robbins v. Robbins, 101 Id. 417.

It was also held that it was not error for the circuit court, in decreeing a divorce at the suit of the wife, to assign to her, as alimony, a part of the real estate of the husband. Armstrong v. Armstrong, 35 Ill. 109; Ross v. Ross, 78 Id. 402; Becker v. Becker, 79 Id. 418.

The claim that alimony abates at the husband's death is at variance with the letter and spirit of these decisions.

Messrs. BENNETT & GREEN, for the appellees:

It is assigned for error that the court erred in not assessing the damages for appellant's right of dower from the filing of her bill, and in finding that her alimony abated at her husband's death. In this case no application in the pleadings, or otherwise, was made to have her damages assessed. Besides, she is in no way injured, as the decree orders the land sold and the proceeds to be brought into court for distribution. Before that is done she can have her damages ascertained.

It has been many times held by this court that under proper circumstances, as, when the wife brought a considerable amount of property to the husband at the time of the marriage, which had been included in property held by him at the time of the divorce, that real estate, personal property, or a sum of money in gross, should be given her in satisfaction of all her claims against her husband. ( Ross v. Ross, 78 Ill. 402.) And undoubtedly the same course might properly be pursued when the entire property of the husband consisted of personalty, or the circumstances of the case indicated that the payment of a yearly allowance might be wrongfully withheld or delayed. ( Burr v. Burr, 10 Paige, 20.) But in all other cases the court has held that an allowance, payable at short and regular intervals, is the proper practice. Von Glahn v. Von Glahn, 46 Ill. 134; Ross v. Ross, 78 Id. 402.

It is true that in several instances the allowance has been fixed for the period of the life of the divorced wife, but in such cases it has usually, in this State, been so decreed in lieu of the dower interest held by her in the husband's real estate. Becker v. Becker, 79 Ill. 532.

The alimony in this case is not in lieu of dower, nor is the allowance ordered to extend for appellant's life, nor is a judgment for a fixed sum in lieu of alimony. Plaster v. Plaster, 47 Ill. 290.

Alimony, strictly defined, is “a provision for the support of the wife, to continue during the joint lives of the parties.” 2 Bishop on Marriage and Divorce, sec. 351; Wallingford v. Wallingford, 6 Har. & J. 485; Parsons v. Parsons, 9 N. H. 309; Wooldridge v. Lucas, 7 B. Mon. 49; Clark v. Clark, 6 Watts & S. 85.

Such alimony can not be ordered for the term of the wife's life, because it is a maintenance to her, while the husband's duty to maintain her ceases at his death. 2 Bishop on Marriage and Divorce, (6th ed.) sec. 428; Lockridge v. Lockridge, 3 Dana, 28.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

By a decree of the circuit court of Whiteside county, rendered on the 22d of June, 1881, Johanna Lennahan was divorced from her husband, John Lennahan, for his fault, and allowed alimony. Afterwards, on the 15th of June, 1882, he died intestate, leaving no child or children, but only certain collateral relatives surviving him as his heirs at law. The original bill in the present case was filed by the widow, Johanna, against those heirs at law and certain claimants of liens, for the assignment of dower, and for partition. Mary O'Keefe, one of the heirs at law of Lennahan, and administratrix of his estate, filed her cross-bill in the case, making Johanna Lennahan, the other heirs at law, and the claimants of liens upon the real estate, defendants, praying for an account of the debts against the estate, etc., that dower be assigned to Johanna, that her decree for alimony be modified or cancelled, and for partition. Issues were made on the allegations of these bills, the cause was heard by the court, and a decree rendered declaring that Johanna was endowed of a third part of the lands; that the heirs at law were entitled to designated interests, subject to mortgage liens, unpaid alimony due Johanna, and the debts of the decedent; that the alimony decreed to Johanna ceased at the death of her husband, and that the lands were discharged from that lien, except in so far as there was unpaid alimony which had accrued in the lifetime of Lennahan. Commissioners were appointed to assign dower and make partition in accordance with the decree. The commissioners subsequently reported, after assigning dower to Johanna in certain property particularly described, that the lands were insusceptible of division. The court confirmed this report, and, among other things, decreed that Johanna have the proper proportion of the rent of the premises set off to her as her dower, from the date of the decree, etc. On appeal to the Appellate Court for the Second District the decrees of the circuit court were affirmed, and this appeal is from that affirmance.

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