Leyland v. Leyland

• Decision Date: 08 September 1904
• Citation: 71 N.E. 794,186 Mass. 420
• Parties: LEYLAND v. LEYLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 420

71 N.E. 794

LEYLAND v. LEYLAND.

Supreme Judicial Court of Massachusetts, Middlesex.

September 8, 1904

COUNSEL

J. B. Dixon, for appellant.

Elder & Whitman and Jas. T. Pugh, for appellee.

OPINION

LATHROP, J.

This is an appeal from a decree of a single justice of this court allowing a motion to dismiss an appeal from a decree of the probate court allowing the final account of a guardian. The grounds upon which the motion is asked are that the appellant is not a creditor of the estate, and that the appellant is not a party aggrieved by the decree of the probate court.

The facts, as they are stated in the motion to dismiss, are as follows: Mary Leyland was duly appointed guardian of Thomas W. Leyland on April 24, 1900, and filed a bond with a surety. On September 18, 1902, her ward became of age. On October 24 1902, her first and final account duly assented to by the ward after he became of age was filed in the probate court. On December 23, 1902, Helen M. Leyland, claiming to be a creditor, made a motion to contest the account, which motion was denied on February 12, 1902, by a decree of that court. Helen M. Leyland was the wife of the ward, and she obtained a decree nisi from him in the superior court of Suffolk county on Novemver 6, 1902, as of September 15, 1902, with alimony. No demand for payment of this alimony was made until after the ward became of age and the account was filed. There was no attachment or trustee process upon the guardian. The decree allowing the motion to dismiss states that the appellant is not a creditor of the estate, nor a party aggrieved by the decree of the probate court, and recites that it was passed 'after a full hearing and consideration.'

The appellant first contends that the single justice of this court had no right to hear the case and decide upon the motion to dismiss. But the practice followed in this case is familiar, and it is a convenient practice, where the question is as to the right of the appellant to appeal from the decree of the probate court. Lawless v. Reagan, 128 Mass. 592; Dexter v. Codman, 148 Mass. 421, 19 N.E. 517. Whether the facts stated in the motion were true or not was to be determined, in the first instance, by the single justice of this court, and, as no evidence is set forth, we cannot disturb his decree on any question of fact. The record shows that the decree was entered after a full hearing. The only questions open are those of law.

The contention of the appellant is that, as she has a decree and execution for alimony, she is a judgment creditor of the ward; and that she is therefore 'a person aggrieved,' within the meaning of these words in Rev. Laws, c. 162, § 9. It is obvious that, if the appellant had no right to contest the settlement of the guardian's account, she is not a person aggrieved within the meaning of the statute; and this brings us to a consideration of the question what her rights were in this respect. She had a decree of divorce and an execution for alimony, but she had not brought suit against the guardian, nor had she attached the ward's estate, nor levied her execution. We find nothing in Rev. Laws, c. 152,§§ 29, 30, cited by the appellant, which favors her contention. These relate to the powers of the superior court to enforce decrees for alimony. As was said by Mr. Justice Gray in Audubon v. Shufeldt, 181 U.S. 575, 577, 21 S.Ct 735, 736, 48 L.Ed. 1009: 'Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support his wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one state, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another state, and may, therefore, be there enforced by suit. Barber v. Barber, 21 How. 582, 16 L.Ed. 226; Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810. But its obligation in that respect does not affect its nature. In other respects alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate, to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction of the relation of husband and wife than by a court of a different jurisdiction.' It was accordingly held in the case just cited that alimony, whether in arrear at the time of an adjudication in bankruptcy or accruing afterwards, was not a debt provable in bankruptcy, within Act Cong. July 1, 1898, c. 541, § 1, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3419]. See, also, In re Nowell (D. C.) 99 F. 931, 932. So, in Downs v. Flanders, 150 Mass. 92, 94, ...