Brandon v. Brandon
135 S.W.2d 929
Tenn.
1940
Check Treatment
Mr. Justice DeTIaven

delivered the opinion of the Court.

Mrs. Lеone Brandon, on October 3, 1922, was granted a decree for absolute divorce from D. G. Brаndon and the custody of their four minor children. The decree with reference to the allowance of alimony provided that B!. G. Brandon pay into the office of the clerk of thе court the sum of $250' “on the first day of each month thereafter, until the further orders of the court, аs alimony for the maintenance of the said Leone D. Brandon and her said four children; . . .” The сourt further ordered “that as alimony, the cross-complainant, Leone D. Brandon, shall be furnished with a home out of the estate of cross-defendant, D. G. Brandon, to cost $9,000, or approximately that amount, however, not to be exceeded, and the title to the home to be vested in the said Leone D. Brandon for and during her natural life; the remainder at her death, in the surviving* children, or if any of the children shall die leaving children, such children to take the parent’s sharе.”

It was further adjudged that D. G. Brandon “shall pay *465 all taxes, state, county and municipal, that may accrue against the home so furnished, from time to time, and shall in addition pay the premiums for insurance against loss or damage by fire or lightening, in a sum not less than $6,500.”

By subsequent order the monthly ‍‌‌​‌‌‌​​​​‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌​​‌‌‌​​​‌‌​​‌‌‌‌​‌‍alimony was reduced to $150.

Mr. Brandon died on June 2, 1938. He hаd paid in full the monthly installments of alimony and had purchased a home for Mrs. Brandon and the title thеreto was vested as ordered by the decree.

The questions presented for determination are (1) whether the estate of D. G-. Brandon, deceased, is liable to Mrs. Brandon for $150 for еach month during the balance of her life, and (2) whether said estate is liable for taxes and insurance on the homeplace during her life.

The chancellor held against Mrs. Brandon on bоth of the above questions ‍‌‌​‌‌‌​​​​‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌​​‌‌‌​​​‌‌​​‌‌‌‌​‌‍and she has appealed to this court and assigned errors.

(1) Alimony is allowed the wife in recognition of the husband’s common law liability to support her. Toncray v. Toncray, 123 Tenn., 476, 131 S. W., 977, 34 L. R. A. (N. S.), 1106, Ann. Cas., 1912C, 284; Swnn v. Harrison, 42 Tenn. (2 Cold.), 534. This liability for support of the wife necessarily ends with the death of the husband. Wilson v. Hinman, 182 N. Y., 408, 413, 75 N. E., 236, 2; L. R. A. (N. S.), 232, 108 Am. St. Rep., 820; Borton v. Borton, 230 Ala., 630, 162 So., 529, 101 A. L. R., 320. Alimony, therefore, is ended by the death of the husband, the event ‍‌‌​‌‌‌​​​​‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌​​‌‌‌​​​‌‌​​‌‌‌‌​‌‍upon which the obligation of support would have endеd had there been no divorce. Blades v. Szatai, 151 Md., 644, 135 A., 841, 50 A. L. R., 232.

In 17 Am. Jur., p. 473, it is stated:

“According to the weight of authority, a decree, *466 granted in connection with an absolute divorce, for thе regular periodical payments of alimony to tire wife for ber maintenance and support is terminated upon the husband’s death, in the absence, at least, of some stipulation in the order which would require payments after his death. ’ ’

See, also, Annotations 101 A. L. R., 323, and 18 A. L. R,, 1040.

The originаl decree herein fixed a sum certain (the furnishing of a home) as a sole charge on thе corpus of the estate of D. Gr. Brandon, deceased, with allowance of ‍‌‌​‌‌‌​​​​‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌​​‌‌‌​​​‌‌​​‌‌‌‌​‌‍future monthly payments to be made by him for her support and maintenánce and future payments by him of all taxеs and insurance premiums on the home provided by him.

The decree is plain and unambiguous and is not open to the construction that the monthly payments for the- support of Mrs. Brandon and her children and the payment of taxes and insurance on the home were to bind the estatе of D. Gr. Brandon and continue, after his death, as long as Mrs. Brandon shall live.

In Murphy v. Shelton, 183 Wash., 180, 48 P. (2d), 247, 248, by the terms of the decrеe of divorce the wife was awarded a life estate in certain real propеrty. The husband was ordered to pay all taxes and insurance on the property, and, in addition thereto, was directed to pay the wife the sum of $50 per month for her support. The time the payments were to run was not specified in the decree. The husband died testate. The wife made claim for alimony accruing subsequent to the death of the husband. The court held that whilе, under the statutes of Washington, the court had the power to prescribe in the decreе that alimony shall continue beyond death of the husband, it had not done so, and said “the provision for *467 continuance of such payments after death, must either be specifically stated in the decree, or else its language must he so clear and unmistakable as to indicatе that the court intended ‍‌‌​‌‌‌​​​​‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌​​‌‌‌​​​‌‌​​‌‌‌‌​‌‍that the decree should have that effect. In the absence оf specific statement or clear intention, it will be presumed that the payments abatе upon the death of either spouse.”

The chancellor properly excluded thе testimony of Mrs. Brandon as to her understanding that the alimony would be paid her as long as she lived. The decree entered by the court must control and is not subject to alteration or chаnge by prior statements of the parties.

The decree of the chancellor must be affirmed. Mrs. Brandon will pay the costs of this appeal.