Murphy v. Moyle

• Decision Date: 28 June 1898
• Docket Number: 927
• Court: Utah Supreme Court
• Parties: PRISCILLA MURPHY, RESPONDENT, v. OSCAR W. MOYLE, EXECUTOR, APPELLANT

53 P. 1010

17 Utah 113

PRISCILLA MURPHY, RESPONDENT, v. OSCAR W. MOYLE, EXECUTOR, APPELLANT

No. 927

Supreme Court of Utah

June 28, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by Priscilla Murphy against Oscar W. Moyle, executor of the will of Jesse J. Murphy, deceased. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. H Moyle and O. H. Moyle, for appellant:

But if the decree provides that it should be paid during her minority it would be understood to cease with the death of the father, because then his obligations to provide for his children ceased. Field v. Field, 66 Howard Practice 346.

Our statute after the death of the father, makes provision for the children out of his estate. Compiled Laws Utah, 1898 secs. 3846 and 2828; Younger v. Younger, 39 P. 780.

And the children take the allowance whether or not the deceased dies testate or intestate, solvent or insolvent. Compiled Laws supra, sec. 3846; Woener American Law of Administration, Vol. 1, sec. 82 and cases; Schouler Executors and Administrators, See. 455.

It is elementary that the amount of alimony and support money given in divorce depends upon the faculties of the husband, and his faculties are, in general, determined almost wholly by the income of the husband. Bishop on Marr., Div. and Sep., Vol. II., sec. 894, et. seq., and cases cited; Field v. Field, 66 Howard Practice 346.

As the faculties of the husband change, alimony and suit money may be increased or cut down. Bishop on Marriage, Divorce and Separation, Vol. II, secs. 1216, 1217, 1218, and cases cited.

A decree granting alimony is made on the conditions and circumstances as they then exist, and leave the future for future determination. Shammell v. Shammell, 38 P. 729, s. c. 105 Cal.; Greenleaf v. Greenleaf, 61 N.W. R. 42; Younger v. Younger, 39 P. 779.

Even if attempt had been made by the court in the decree in question to have made it final and beyond change, such provision would have been void. Campbell v. Campbell, 37 Wis. 220; Coad v. Coad, 41 Wis. 23; Thomas v. Thomas, 41 Wis. 222; Kempter v. Evans, 81 Wis. 253; Stillman v. Evans, 99 Ill. 196.

By all the rules of construction of the decree itself, the decree was not intended to operate and did not operate after death, and is not binding on the creditors and heirs of Jesse J. Murphy, deceased. Lennahan v. O'Keefe et al., 107 Ill. 620; Field v. Field, 66 Howard Practice, 346. In Lennahan v. O'Keefe, supra.

Alimony is merely a personal duty of the husband and continues only during the joint lives of the parties. It ends when the husband dies.

Maxwell v. Sawyer, 90 Wis. 352; Field v. Field, 66 Howard Practice 346; Briggs v. Briggs, 24 South Carolina 377, 382; Knapp v. Knapp, 134 Mass. 353, 355; Dewes v. Dewes, 55 Miss. 315; Casteel v. Casteel, 28 Ark. 477; Lennahan v. O'Keefe, 107 Ill. 620; Rogers v. Vines, 6 Ired, New York 293; Gaines v. Gaines, 48 Am. Dec. 425, 429; Lockridge v. Lockridge, 28 Am. Dec. 52.

The presumption is that alimony ceases with the death of the husband. Field v. Field, 66 Howard Practice 346; Maxwell v. Sawyer, 90 Wis. 352; Lennahan v. O'Keefe, 107 Ill. 620; Casteel v. Casteel, 38 Ark. 477; Briggs v. Briggs, 24 South Carolina 382; Encyclopedia of Pleading and Practice; Vol. I, page 429, note 3, and cases last cited, supra.

And the giving of alimony does not cover support money, or maintenance for the support of the child. McKay v. Superior Court et al., 52 P. 147, Adv. S; Wilson v. Wilson, 45 Cal. 399; Erkenbrach v. Erkenbrach, 96 N.Y. 456; Bishop Marr. Div. and Sep. Vol. 2, sec. 1212, 1214.

Ferguson & Cannon, for respondent.

BARTCH, J. ZANE, C. J., concurs. MINER, J., dissents.

OPINION

BARTCH, J.:

This action was instituted by the plaintiff against the defendant, as executor of the last will and testament of Jesse J. Murphy, deceased, and involves the sum of $ 447, claimed by virtue of a decree, and subsequent modification thereof, made by the district court of the late territory of Utah, in an action for divorce brought by defendant's testate against the plaintiff. In that case the defendant (plaintiff herein) filed a cross complaint, and a decree was granted in her favor on her cross complaint, by which the bonds of matrimony existing between the parties were dissolved, and a certain sum of money decreed to be paid monthly, by the defendant therein, to the plaintiff, for the support of their two minor children, during their minority, and until they would be of age. To secure the payment of such sum, it was decreed to be a lien on certain property of the plaintiff in that suit. The decree was afterwards so modified as to require payment of but one-half of the original sum, and this was to be for the support of the child in whose behalf this suit was brought. Since the death of the testate, payment has been refused by the executor, who also refused to allow the claim above mentioned. At the trial of this cause, the court rendered judgment in favor of the plaintiff, directing that the "defendant. as executor of the last will and testament of Jesse J. Murphy, deceased, pay to the clerk of the court, for the use of the plaintiff, the sum of $ 447, to be paid by said clerk to the plaintiff in the following manner: The sum of $ 216 to be paid as soon as received by said clerk; the sum of $ 6 per month on the first day of April, 1897; the sum of $ 6 per month on each succeeding month thereafter until May 15, 1900, for the care, support and education of Clara Murphy, the minor daughter of the deceased, to be paid to plaintiff while said minor is under age, and in the care and custody of plaintiff,"--and further decreed that the plaintiff had a lien on the property described in the decree, made in the divorce proceedings, and ordered the same to be sold to satisfy the lien, and the proceeds to be turned over to the clerk of the court, and that, if the proceeds were insufficient to pay the amount, the executor should pay the deficiency. Judgment was also given for costs.

The material question to be determined is whether, under the decree made in the proceedings for divorce, as afterwards modified, and under the law, the court was authorized to make the decree in controversy herein. Counsel for the appellant contend that the payment of the money for the support of the minor child could not be enforced after the death of the testate. The rule which counsel would here invoke was doubtless applicable at common law to a divorce a mensa et thoro, which did not finally terminate the marriage relation, but merely effected a separation, without disturbing the marital rights and obligations; but it does not necessarily apply to a decree of divorce granted under the statutes of this state, which has the same effect upon the marriage relations and marital rights and obligations as a divorce a vinculo matrimonii at common law. In such case whether or not the divorced wife and minor children, or any of them, are entitled to have the payment of alimony or money for their support continue after the death of the deceased, depends on the nature and terms of the decree allowing the same. In the case at bar, the original decree of divorce, after declaring the bonds of matrimony existing between the parties dissolved, and awarding the care, custody, and control of their minor children (who are therein mentioned as Priscilla Ellen Murphy and Clara Jane Murphy) to the defendant, the plaintiff herein, respecting the matter of support for them, provides as follows: "It is further ordered, adjudged, and decreed by the court that the defendant have and receive from the plaintiff the sum of $ 12 per month permanent alimony and support for her said minor children, the said amount to be paid to her by the plaintiff on the first day of each and every month during the minority of said children, and until they become of age, and that, as security for the payment thereof, the defendant have a lien" upon certain premises and property described in the decree. It will be noticed that by this decree the plaintiff was required to pay the sum of $ 12 per month alimony and support for their two minor children during their minority, and that is no other limitation than their minority,...