Van Ness v. Ransom
| Decision Date | 13 July 1915 |
| Citation | 215 N.Y. 557,109 N.E. 593 |
| Parties | VAN NESS v. RANSOM et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Deborah Van Ness against Rastus S. Ransom and others as temporary administrators of the estate of Cornelius Henry Van Ness, deceased. After the determination of plaintiff's appeal by the Appellate Division, she died. On motion to substitute in place of plaintiff, her executor. Motion granted.
See, also, 164 App.Div. 483, 150 N.Y.Supp. 251.
Agar, Ely & Fulton, of New York City, for the motion.
O'Gorman, Battle & Vandiver, of New York City, opposed.
CUDDEBACK.
The plaintiff in this action died in January, 1915, after the determination of the appeal at the appellate Division, and this is a motion to substitute in her place and stead as plaintiff the executor of her last will and testament. The motion is opposed upon the ground that the cause of action did not survive the plaintiff's death. The plaintiff, Deborah Van Ness, and the defendant's intestate, Cornelius Henry Van Ness, were husband and wife, and they were divorced by a decree of the Supreme Court entered on May 23, 1867. The decree of divorce provided that the defendant, as a suitable allowance for the plaintiff's support during her life, should pay her alimony at the rate of $600 a year in equal quarterly payments. The husband died in 1911 without having ever paid any alimony as required by the decree. The wife brought this action upon the judgment to recover the alimony which had accrued prior to her husband's death.
The question is presented whether the cause of action for the arrears of alimony, which accrued prior to the death of her husband, survived on the death of his widow, the plaintiff.
The decree of 1867 dissolved the marriage relation, and each of the parties was freed from the obligations thereof. The indefinite and general duty of the husband to support his wife was changed and made specific and took the form of a judgment against him for the alimony awarded. As was said in Livingston v. Livingston, 173 N.Y. 377, 381, 66 N.E. 123, 61 L.R.A. 800, 93 Am.St.Rep. 600, after a decree in divorce, “the wife has no future rights, and thus husband is under no future obligations, such as are founded upon, or spring out of, the marriage relation.” So upon the entry of judgment in this case the husband became liable at the expiration of each and every period of three months to pay to his wife the sum of $150.
I do not see how, in justice, it can be said that if the husband failed to pay according to the terms of the judgment, and the wife thereafter died, the judgment in her favor lapsed as to the amount already accrued, and cannot be enforced by her personal representatives. The husband cannot be heard to say that the wife had not required the alimony for the purposes of her support. The court, by the decree, determined on a full consideration of the conditions existing, that it was proper the husband should pay the sum mentioned. If he did not pay, and the wife drew upon her own resources or obtained otherwise the means of support, the husband should not be relieved to that extent from the obligations of the judgment.
In other states where the question has come under consideration, it has been held that the arrears of alimony due a divorced wife at the time of her death may be collected by her executor or administrator. Miller v. Clark, 23 Ind. 370;Dinet v. Eigenmann, 80 Ill. 274;Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155, 55 L.R.A. 794;Gerrein v. Michie, 122 Ky. 250, 91 S.W. 252. The analogous proposition that the wife may hold the husband's estate for alimony due and unpaid at the time of his death has also been sustained. McIlroy v. McIlroy, 208 Mass. 458, 464, 94 N.E. 696, Ann.Cas.1912A, 934;Martin v. Thison, 153 Mich. 516, 116 N.W. 1013, 18 L.R.A. (N.S.) 257, 126 Am.St.Rep. 537. Only one case has been called to our attention in opposition to the motion, and that is ...
To continue reading
Request your trial
-
Peterson v. Goldberg
...during her lifetime by a valid ex parte foreign judgment of divorce. This outcome is consistent with the rule of Van Ness v. Ransom, 215 N.Y. 557, 109 N.E. 593, that a cause of action for accrued alimony survives the wife's death and may be maintained by her estate (see also, Joffe v. Spect......
-
Sperbeck v. AL Burbank & Co.
...Bowers, 2 Cir., 50 F.2d 104; Anderson v. Metropolitan Stock Exchange, 191 Mass. 117, 77 N.E. 706, 707. 31 See, e. g., Van Ness v. Ransom, 215 N.Y. 557, 560, 109 N.E. 593, L.R.A. 1916B, 32 Illinois Central R. R. Co. v. Turrill, 110 U.S. 301, 303-304, 4 S.Ct. 5, 28 L.Ed. 154; Brown v. Hillear......
-
Simonton v. Simonton
...St. 364, 2 Ann. Cas. 914, 106 Am. St. 621, 74 N.E. 194; Peeke v. Fitzpatrick, 74 Ohio St. 396, 6 Ann. Cas. 824, 78 N.E. 519; Van Ness v. Ransom, 215 N.Y. 557, Ann. Cas. 1917A, 580-582, 109 N.E. 593, L. R. A. 1916B, But the weight of authority, and to our mind the better rule, is to the effe......
-
Spiliotis v. Campbell
...impair the value of the decree in the wife's favor by depriving her" of a source of credit to obtain support. Van Ness v. Ransom, 215 N.Y. 557, 559, 560, 109 N.E. 557 (1915). The following cases also allow recovery by a wife's personal representative. Heaton v. Davis, 216 Ala. 197, 198-199,......