Noyes v. Noyes

• Decision Date: 07 November 1939
• Parties: H. FRANK NOYES v. ONOLETTE G. NOYES ET AL
• Court: Vermont Supreme Court

9 A.2d 123

110 Vt. 511

H. FRANK NOYES v. ONOLETTE G. NOYES ET AL

Supreme Court of Vermont

November 7, 1939

October Term, 1939.

Bill to Enjoin Levy of Execution on Alimony Judgment against Trust Property---1. Service of Process Necessary to Make Alimony Decree Enforceable---2. Enforceability of Alimony Decree without Service or Appearance---3. Stipulation as General Appearance---4. Test of General Appearance---5. General Appearance Arising by Implication---6. Action Recognizing Cause as Pending as General Appearance---7. Stipulation Filed in Divorce Proceedings Held to Give Court Jurisdiction to Award Alimony---8. No Execution against Equitable Estates at Common Law---9. Interest in Real Estate Subject to Execution under P. L. 2259---10. Trust Held Not to Become Dry Trust on Death of Beneficiary for Life---11. Title and Powers of Testamentary Trustees---12. Merger of Legal and Equitable Estates---13. Equitable and Legal Estates of Trustee-Beneficiaries Held Not Merged---14. Vesting of Beneficial Interest in Trust Estate---15. Cause Remanded to Permit Proceedings in Equity for Enforcement of Alimony Decree.

1. A decree for the payment of money as alimony, like any money judgment, is inoperative without service of process on the libellee in this state, or appearance, except for the purpose of subjecting to its payment property of the libellee which has in some manner first been brought within the control of the court by the proceedings.

2. Where a divorce libel merely asks for the award of alimony but property of the libellee is not attached or in any way brought under the jurisdiction of the court the judgment obtained therein, in the absence of personal service within the state, or appearance, can have no relation to the defendant's property, but is entirely personal and void.

3. Stipulations or agreements entered into between the parties or their counsel with reference to a pending suit are usually regarded as amounting to a general appearance, unless the subject matter and nature of the stipulation are such that they in no way recognize the case as being in court.

4. No infallible test exists for determining what constitutes a general appearance in all cases, one test being whether the defendant becomes an actor in the cause.

5. A general appearance may arise by implication from the defendant's seeking, taking or agreeing to, some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff, other than contesting the jurisdiction only, provided that the purpose of the step bears some substantial relation to the cause and is not collateral thereto.

6. An action on the part of a defendant, except objecting to the jurisdiction, which recognizes the case as pending in court with jurisdiction of the subject matter and of the parties will constitute a general appearance.

7. Where a libellee in a divorce proceeding was not served except by delivery of copies outside the state as provided in P. L. 2084 and did nothing about appearing in the action except that he and his attorney joined with the libellant and her attorneys in filing a stipulation which was headed with the name of the case and provided in case a divorce was granted for the payment of a specified sum in lieu of all further alimony, counsel fees or expense money and as a full property settlement between the parties, the court obtained jurisdiction to award alimony upon the failure of the libellee to comply with the terms of the stipulation, even though that agreement provided that the payment specified was to be applied on orders made in the course of other proceedings between the parties, since the signing and filing of such a stipulation met the tests of what is necessary to constitute a general appearance.

8. At common law there was no process but against legal estates, so that uses and trusts, and equities of redemption, and all merely equitable interests in lands or personal property were not liable to be taken and sold on execution.

9. Except for equities of redemption execution at law on real estate in this state is confined to legal estates under the provisions of P. L. 2259 describing the interests in real estate which may be taken and sold on execution.

10. Where trustees were directed in a will to divide and distribute the trust estate among the testator's children or the heirs of any deceased child on the death of his widow the trust did not become a dry or passive one on the death of the widow, since the Statute of Uses has not been adopted in this state.

11. Testamentary trustees hold the legal title to the trust estate under the will and the decree of the probate court and cannot be compelled to surrender it to a beneficiary or one claiming under him until ordered to do so by the probate court, but they may vest in the beneficiaries the title and possession of their shares without an order of the probate court, and if they pay the right parties their proper shares they are protected.

12. Where the legal and equitable estate in the same land becomes vested in the same person, the equitable will merge in the legal estate, but the two estates must be commensurate with each other, or the legal estate must be more extensive or comprehensive than the equitable, as the equitable cannot merge in a partial or particular legal estate.

13. Where trustees were directed in a will to divide and distribute the trust estate on the death of the testator's widow among his three children or the heirs of any child then deceased, and the three children were serving as trustees when the widow died, their equitable and legal estates in the trust property were not so merged that the interest of one child would be subject prior to settlement and distribution to an execution at law issued to enforce an alimony judgment against him, because the children held a joint estate as trustees, while as beneficiaries they held an estate in common and hence the two estates were not commensurate.

14. When the trustees were directed in a will to divide and distribute the trust estate on the death of the testator's widow among his three children or the heirs of any child then deceased, the beneficial estate vested on the death of the widow, and each of the children then had an interest that he could convey or devise, and that might be reached in equity for the satisfaction of an alimony judgment.

15. Where a libellee in a divorce proceeding sought to enjoin a levy of execution against his property on an alimony judgment entered therein and it was determined on appeal that he had a vested equitable interest in certain real estate forming part of a trust established under his father's will which was not subject to execution at law but which might be reached in equity for the satisfaction of the judgment the Supreme Court remanded the cause so that the libellant might have an opportunity to proceed in equity.

APPEAL IN CHANCERY. Bill in equity seeking to enjoin the levy of an execution on an alimony judgment. Heard on pleadings and an agreed statement of facts at the March Term, 1939, Rutland County, Adams, Chancellor. Decree dismissing the bill. The plaintiff appealed. The opinion states the case.

Decree reversed and cause remanded. Unless the defendant Onolette G. Noyes on or before December 15, 1939, commence such steps in equity as she is advised will subject the plaintiff's beneficial interest in the trust property to the payment of her alimony judgment, let the court of chancery enter decree in favor of the plaintiff. Let the plaintiff recover his costs in this Court.

Christopher A. Webber for the plaintiff.

Jones & Jones for the defendants.

Present: MOULTON, C. J., SHERBURNE, BUTTLES and STURTEVANT, JJ.

OPINION

SHERBURNE

The plaintiff seeks to enjoin his former wife, Onolette G. Noyes, and Elwin N. Smith, a deputy sheriff, from proceeding with the levy of an execution on an alimony judgment against the plaintiff's property in this state. The case comes here upon the plaintiff's appeal from the dismissal of his bill of complaint.

From the agreed statement of facts it appears that the plaintiff and Onolette G. Noyes were married on June 26, 1934, and thereafter lived together in Rutland. On October 13, 1934, she filed a petition for separate maintenance, personal service of which was made upon him, and an order thereon was issued and personally served upon him on October 31, 1934, that he pay her twenty dollars per week alimony. After the service of this order upon him Noyes left Vermont, and has resided in the State of California since. He has never paid anything upon this order. In 1936, Noyes instituted an action for annulment in California. This action was dismissed and Mrs. Noyes had judgment for counsel fees and costs.

On July 30, 1937, Mrs. Noyes filed a libel for divorce against Mr. Noyes in Rutland County Court, in which she asked for alimony but neither attached nor mentioned any property of the libellee. Service was made upon Mr. Noyes, who was then residing in California, by the delivery to him there of copies pursuant to P. L. 2084. Mr. Noyes did nothing about appearing in this action, except that he and his attorney joined with Mrs. Noyes and her attorneys in filing in said court on November 26, 1937, a stipulation which reads as follows:

"STATE OF VERMONT,

RUTLAND COUNTY, SS.

Onolette Noyes Rutland County Court,

v. Docket No. 13218

H. Frank Noyes

STIPULATION

It is hereby stipulated and agreed by and between Onolette J Noyes, the libellant in the above entitled cause, and H Frank Noyes, the libellee: that in the event a divorce is granted in the above entitled cause, and before the order is entered, the libellee shall forthwith pay to the libellant the sum of $ 1150 in lieu of all further...