Southard v. Southard
| Decision Date | 11 January 1928 |
| Citation | 262 Mass. 278,159 N.E. 512 |
| Parties | SOUTHARD v. SOUTHARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.
Petition by Louis Keith Southard to vacate a decree of divorce, with alimony, granted to Carolyn E. Southard. From a decree of dismissal, petitioner appeals. Affirmed.
David J. O'Connell, of Boston, for plaintiff.
A. M. Beale, of Boston, for defendant.
This is a petition, dated February 3, 1927, by the libellee in a divorce proceeding in the probate court, to vacate a decree of divorce with alimony granted to his wife on June 15, 1925. It is alleged in the petition that the court had no jurisdiction to make the decree awarding alimony, because it ordered the payment of alimony to continue after the decease of the libellee, because it was not limited to the amounts due at his decease, and because it required him to keep his life insured as security for the payment of alimony after his death.
The libellant and libellee agreed in writing that the sums stated should be paid on the designated dates by the husband to the wife; that in the event of his death before February 1, 1926, the amounts as stated should be paid from his estate; and if he died after February 1, 1926, the amounts agreed on should be paid from his estate on the first day of each month. As security he agreed to keep his life insured in the sum of $25,000, payable to his wife, but in trust as set out in the agreement for her support and the support of their children. In the probate court a decree nisi was granted, for the cause of cruel and abusive treatment on the part of the libellee, to become absolute after the expiration of six months; custody of the two minor children was given to the libellant, and the libellee was directed to make payments substantially as agreed to by the parties.
There are a number of decisions holding that liability for alimony ceases with the death of the libellee. Stone v. Duffy, 219 Mass. 178, 182, 106 N. E. 595;Knapp v. Knapp, 134 Mass. 353, 355. These cases, however, merely decided that payments were not to extend beyond the life of the libellee when the decree was silent on the subject. Stratton v. Stratton, 77 Maine, 373, 380, 52 Am. Rep. 779, and cases cited. See in this connection Brown v. Brown, 222 Mass. 415, 416, 417, 111 N. E. 42, and 19 C. J. 278, 279.
The court had jurisdiction of the subject-matter. G. L. c. 208, § 34; St. 1922, c. 532, § 6. It had jurisdiction of the...
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