Storey v. Storey

• Decision Date: 03 October 1888
• Citation: 125 Ill. 608,18 N.E. 329
• Parties: STOREY v. STOREY et al.
• Court: Illinois Supreme Court

125 Ill. 608

18 N.E. 329

STOREY

v.STOREY et al.

Supreme Court of Illinois.

October 3, 1888.

Appeal from appellate court, First district.

Bill by Eureka C. Storey, widow of Wilbur F. Storey, deceased, for the administration of decedent's estate and the execution of the trusts under his alleged will, and cross-bill of Austen L. Patterson, administrator, and the next of kin. On petition of Maria P. Storey, decedent's first wife, the receiver appointed in the suit was directed to pay to her the alimony ordered by the decree entered in her suit for divorce. On motion of Eureka C. Storey this direction was rescined, and the prayer of the petitioner denied. On appeal by the petitioner the appellate court affirmed the action of the circuit court, and from the judgment of affirmance she appealed to the supreme court.

Alimony, as originally understood, has been greatly modified. O'Hagan v. O'Hagan, 4 Iowa, 516, citing Burr v. Burr, 7 Hill, 209;Richardson v. Wilson, 8 Yerg. 67;Fischli v. Fischli, 1 Blackf. 360;Reavis v. Reavis, 1 Scam. 242; Bish. Mar. & Div. 591, 592. In a divorce at common law the marriage relation continued, and alimony was simply a provision for the support of the wife while separation continued. Miller v. Clark, 23 Ind. 371;Dinet v. Eigenmann, 80 Ill. 274. The wife retained all her marital rights in the property of the husband. Taylor v. Taylor, 93 N. C. 418; 2 Scrib. Dower, 515; 2 Bl. Comm. 130. At his death the alimony was succeeded by the larger provision out of his estate. Under our statutes the divorce obliterates the marriage relation, and the provision in the form of alimony is not enlarged by his death. The reason for the rule that the alimony ceases at the death of the husband no longer existing, the rule should not be applied. Miller v. Clark, supra; Dinet v. Eigenmann, supra. The court may decree a sum in gross in connection with a life annuity, or may require the conveyance of property by the husband as statutory, not common-law, alimony. Dinet v. Eigenmann, 80 Ill. 274;O'Hagan v. O'Hagan, 4 Iowa, 516;Stratton v. Stratton, 77 Me. 373;Burr v. Burr, 10 Paige, 20. This alimony may be allowed to continue during the life of the wife, though she outlive the husband. Burr v. Burr, supra, affirmed 7 Hill, 207;Palmer v. Palmer, 1 Paige, 276;Stratton v. Stratton, supra. This principle was recognized in Lockridge v. Lockridge, 3 Dana, 28. That portion of the decree relating to the alimony was entered on consent. That consent authorized a valid decree entered in accordance with it, Stratton v. Stratton, 77 Me. 377;Fletcher v. Holmes, 25 Ind. 458; which is binding on the parties, Buck v. Buck, 60 Ill. 242;Olney v. Watts, 43 Ohio St. 499, 3 N. E. Rep. 354. A husband's contract for his wife's support will be binding on his administrator. Miller v. Miller, 64 Me. 484. The language of the decree is to be construed as of an agreement, and the intention of the parties ascertained by contemporaneous acts done in performance of the contract. Church v. Brose, 104 Ill. 206. The decree manifests the intention of binding the heirs, and in that respect differs from that in Lennahan v. O'Keefe, 107 Ill. 620. Effect must be given to the words ‘so long as she shall be and remain sole and unmarried.’ Remarriage does not, per se, terminate the alimony. Stillman v. Stillman, 99 Ill. 198;Olney v. Watts, 43 Ohio St. 499, 3 N. E. Rep. 354.

The appellant is not entitled to recover alimony from the estate of her deceased husband, accruing after his death. The statute gives the divorced wife dower when divorced for the husband's fault. Rev. St. 1845, p. 199. Complainant is entitled to be endowed of the third part of all the lands whereof her husband was seized, at any time during the marriage, unless the same shall have been relinquished by her. Id. c. 34, § 1. Under the statute the court may make such order touching the alimony and maintenance of the wife as from the circumstances and the nature of the case shall seem fit. Rev. St. c. 40, § 18. Alimony ceases at the death of the husband. 2 Bish. Mar. & Div. §§ 351, 428; Wallingsford v. Wallingsford, 6 Har. & J. 488. A demand for alimony, being personal, dies with the husband. Lockridge v. Lockridge, 3 Dana, 29;Anon. 2 Desaus. Eq. 206;Stillman v. Stillman, 99 Ill. 202. A decree that the husband should pay the wife $50 per month during her life was construed to mean during the lives of both parties. Field v. Field, 15 Abb. N. C. 434. In Knapp v. Knapp, 134 Mass. 355, the court says: ‘As alimony out of the husband's property is a provision for the support of the wife by him, the obligation to pay it in the future necessarily ceases with the death of the husband; but amounts already due at the time of his death are payable out of his estate.’ Francis v. Francis, 31 Grat. 289;Casteel v. Casteel, 38 Ark. 478;Lennahan v. O'Keefe, 107 Ill. 620, affirmed in Stahl v. Stahl, 114 Ill. 378, 2 N. E. Rep. 160. The cases of Miller v. Clark, 23 Ind. 370, and of Dinet v. Eigenmann, 80 Ill. 274, decide nothing more than that alimony which had accrued during joint lives of husband and wife constituted a debt to be enforced after the death of either. The decree in the present case is personal. There is nothing in the decree showing an intention to bind the heirs. The words ‘so long as she may be and remain sole and unmarried’ have no other significance than to avoid further application to the court, as the alimony would upon such application have ceased upon her remarriage, without any such provision. Stillman v. Stillman, 99 Ill. 196. In some states the divorce court is vested by statute with power to make a division of property, assign dower, and adjust the rights of the wife in the property of the husband. In Indiana alimony ‘is in lieu and bar of her (the wife's) interest in the real and personal estate of her husband.’ Musselman v. Musselman, 44 Ind. 122. It may also be true that a wife's provision in a decree of divorce under such a practice is not strictly alimony at common law, and should not be so construed. But the statute of this state gives no such power to the divorce court. The recital that the decree for alimony was entered by consent of the parties does not make it an agreement between the parties that the alimony should be paid while Maria P. Storey remain unmarried, but simply that the court might enter such a decree. This case is not like that of Stratton v. Stratton, 77 Me. 373.

SCHOLFIELD and CRAIG, JJ., dissenting.

Miller, Lewis & Judson, (M. W. Fuller, of counsel,) for appellant.

Trumbull, Willets, Robbins & Trumbull, for appellee Eureka C. Storey.

Also, W. C. Goudy, for the heirs at law, appellees.

MAGRUDER, J.

Maria P. Storey was married to Wilbur F. Storey in June, 1847, and lived with him as his wife until February 17, 1868. In a suit in the circuit court of Cook county, which she instituted against him for divorce, she obtained a decree of February 17, 1868, granting her a divorce for his fault. By the terms of the decree, and of a bond and trust deed dated as of the same day on which the decree was entered, she was allowed alimony to the amount of $2,000 per annum, to be paid to her quarterly, in installments of $500 each. After the divorce Wilbur F. Storey married Eureka C. Storey, his present widow, and one of the appellees in this case. He died on October 27, 1884. The question to be decided is whether the divorced wife, Maria P. Storey, the appellant herein, is still entitled to receive from the estate of Wilbur F. Storey the annual allowance so awarded to her as alimony, or whether she ceased to be entitled to the payment of such alimony upon the death of Wilbur F. Storey.

The rule which prevailed at common law, that the death of the husband necessarily and of itself put an end to the payment of alimony was applicable only in divorces a mensa et thora, which did not have the effect of finally and forever terminating the marriage relation, but operated as mere temporary separations, leaving all the other marital rights and obligations in full force. In the case of such divorces, the separation was liable to end at any time by the reconciliation of the parties, and, even if no reconciliation took place, the marriage continued to exist until it was dissolved by death. But where, as under the statute of Illinois, alimony is awarded upon a decree of absolute divorce, which at once puts an end for all time to the marriage relation, the right of the divorced wife to have the payment of alimony continued to her out of the estate of her deceased husband will depend upon the nature and terms of the decree allowing alimony. While it is true that husband and wife cannot lawfully enter into an agreement for divorce, yet it is well settled that the amount of alimony which the husband is to pay to the wife, and the terms of the payment, and the length of time during which such payment is to continue, may be all arranged between them by consent. In Buck v. Buck, 60 Ill. 242, the recitals of the decree showed that the whole question of alimony was fixed and settled by the agreement of the parties, and it was there held that it was competent for the husband to consent to the provisions of the decree, and that, having done so, he was bound by them, and could have no relief against his own voluntary agreement. Where the court has jurisdiction of the subject, the consent of the parties will authorize it to enter a valid decree or judgment in accordance with their agreement. Where husband and wife agree upon alimony, the court will embody their agreement upon that subject in its decree. Stratton v. Stratton, 77 Me. 377;Fietcher v. Holmes, 25 Ind. 458;Carson v. Murray, 3 Paige, 483;Miller v. Miller, 64 Me. 484. The decree for alimony entered in the case at bar was a consent decree. A portion of its language is as follows: ‘And the cause further coming on to be heard on the question of alimony and maintenance of the said complainant, it is thereupon, by and with...