Rollins v. Gould (In re Gould's Estate)

• Decision Date: 02 March 1923
• Parties: ROLLINS v. GOULD et al. In re GOULD'S ESTATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 270

138 N.E. 815

ROLLINS

v.GOULD et al.

In re GOULD'S ESTATE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1923.

Appeal from Probate Court, Suffolk County; Robert J. Grant, Judge.

Proceeding by Daniel A. Rollins, administrator of Frank L. Gould, against Mary J. Gould and others on a petition for instructions as to the proper distribution of the estate, in view of a divorce suit in which an absolute decree had not been entered prior to intestate's death. From the decree, the next of kind of Frank L. Gould appeal. Affirmed and remanded.

The answers admitted the facts alleged in the petition and the next of kin alleged the additional fact that Frank L. Gould had paid the $1,500 provided for in the decree and agreement mentioned in the opinion. The probate court entered decree ordering that, on repayment by Mrs. Gould to the administrator of such amount, with interest, the estate should be distributed, giving her the amount to which the widow of the intestate would be entitled by statute.

Fred L. Norton, of Boston, for appellants.

Henry J. Winslow, of Boston, for respondents.

DE COURCY, J.

Frank L. Gould the petitioner's intestate, died July 11, 1920, leaving as his widow the respondent Mary J. Gould, and as his next of kin certain brothers and sisters, represented by the other respondents. He brought a libel for divorce against his wife, said Mary J. Gould, in October, 1919, on the grounds of desertion. On March 17, 1920, a decree nisi was entered in his favor, and also a decree assented to by the parties, ordering him to pay forthwith to the libelee ‘the sum of fifteen hundred ($1,500) dollars in full of all alimony, allowances and claims and demands in law or in equity by libelee against the libelant.’ An agreement dated March 18, 1920, made by the parties and a third person as trustee, recited the pendency of the libel, the wife's petition for alimony, and her claim for $1,000 advanced by her, in 1911, for which she held his note. Therein he promised to deliver to the third party said sum of $1,500; and she agreed to surrender the note, and after the decree nisi should have become absolute, to give a ‘release and discharge of all claims that she may have for alimony and all other claims, in law or in equity, which she may have against’ him. The money was thereupon paid, and the promissory note surrendered.

Within four months after the entry of the decree nisi, and hence before it could have become final, Frank L. Gould died intestate; and a suggestion of his death was duly filed in the divorce case. The petitioner, administrator of his estate, is ready to make a partial distribution of the money in his hands, and brought this petition in the probate court praying for instructions as to whom and in what proportions he should make payments.

The decree nisi did not terminate the relation of husband and wife between the parties to the libel. Unless and until the case should be finally disposed of by the entry of a decree absolute, Mary J. Gould continued to be the legal wife of Frank L. Gould; and upon his death, intestate, she was entitled to the share in his estate provided by the statute then in force....