*1 prior In view of our decisions we was not a this case that there
conclude taking and the decision of the court below No costs awarded. reversed. must ELLETT, HENRIOD, J., C. MAUGHAN, JJ., con- CROCKETT cur. DALY, the Estate M. Executrix
Leah Deceased, Daly, Plain- Eva Dean Respondent, tiff and Appellant. George DALY, F. Defendant No. 13517. Supreme Court Utah.
March Knowlton, Gale, Og- David Vlahos & J.
den, Knowlton, City, Horace Salt Lake J. appellant. for defendant and Macfarlane, Sr., City, Salt Lake Grant plaintiff respondent. HENRIOD, Justice:
Appeal judgment in a from divorce part Affirmed in and reversed tion. part.
Plaintiff, Daly, Leah M. Executrix Daly, wife Eva Dean the deceased Mrs. defendant, original which latter was the action, started this plaintiff plaintiff by such order of substi- was made *2 885 ticipated, the trial by court. Such in clear enough language, tution entered stated opinion and in our the governing substitution was error rule that: Al- to was to a motion vacate.1 vulnerable When the death parties of one the may been though we think the error have occurs after the a entry of divorce de- dispositive procedurally, case we do of this cree and before the decree is final the issue, with concern ourselves such not decree becomes to ineffective dissolve it, pressed but think the solu- since no one marriage, the having death terminated tion case in particular to this be found personal that relationship. However, the follows, elimi- what we believe will which occurrence of death does not abate the procedural nate considerable circumlocu- itself and prop- action to the extent that ultimately would arrive at the tion that erty rights are determined the decree anyway. same result it remains effective and becomes final in the same manner and at same the time Daly, wife of defendant Eva Dean living persons. as one between sued him di many, many years, an decree vorce and obtained language Such fully would warrant de three The to become final in months. Eva, the awarding (or home to her devi- home, jointly cree awarded her the owned heirs), sees case of her death $8,000 equita parties, subject to an the interlocutory period, the and died ble lien in favor of defendant. Eva enough to affirm the trial court’s award to period, midway and of the three-month plaintiff’s the side of this case. This we Leah, Executor, plaintiff, as her was made do, an subject decree, to to amendment She, plain as reflected above. ostensible order, which also awarding we the home to tiff, awarded, subject a in de to lien the devisee or devisees or the heirs of Eva $8,000, the fee title to fendant deceased, Daly, Dean provided in naming property, of Leah as trans which mentioned, subject statutes lien men- error, such a feree since we consider tioned, subject proper to administra- case, representative the facts of this tion probate of her estate via the side of seem, grantee. it cannot be made the would the court.6 This, con so far at as one reason is least property real vests in cerned—that the theAt same affirm time we heirs the will2 or in the devisees under award, hereby prospectively we reverse representative, sub possession with part Harper’s In re decision in ject probate,3 to and encumbrances.4 Estate, supra, having to do with determina Estate,5 brings In re property hereby us tion of rights, order 1954, repre decided adjudge this court when the death of one or parties sents the law in State at the time Eva both of entry occurs after the case, opinion, died. That in a unanimous of a decree and before present par final, in which one of our members the decree becomes ineffective Hanson, 29, 37, 1. 60 4. At Price Utah 206 P. best decree should have awarded devisees, (1922) seeking property to : “A to intervene Eva’s or to her law- appear heirs, disposed make ful not it by will, subject including rights proper probate that he would have been at least a creditors, taxes, liens, (including equit- to the action when it was commenced case), en in this and that he would have been able lien etc. separate titled he to the relief seeks supra. 1, 5. Footnote Harper’s Est., 1 action.” also re See fact, ; (an 6. trial should determine the whether The (1954) Utah P.2d 1005 subject testamentary was the independent action). intestacy. disposition, or 74-1-36, 1953. Title Code Annotated Utah 3. Title Code 74- Annotated 4-
is deemed and held to be of no further are but obiter dicta unnecessary force or effect.7 decision in this case.
Second, applied that as facts, to its CALLISTER, TUCKETT, J., J., good law; C. and it is regret- table concur. that those long-buried bones should
be disinterred to become controversial
*3
again.
ELLETT,
(concurring and dis-
Justice
Third, and
important,
most
senting) :
divorce cases
equitable
are
respects,
in all
particularly
r
except
I concur
I can see no reason fo
here as
rights.
many,
overruling
Harper’s
prospec
In re
Estate
instances,
not most
once there has been lit
tively. If it is bad law for the next case it
igation and property rights have been de
is bad law for this one. No one involved termined, they
settled,
should remain
unless
any
the instant matter has sustained
good
cause shown the
persuad
court is
upon
Harper
harm or loss
reliance
the
ed that for equitable
they
considerations
case and for that reason I think the real
be changed.
should
sup
conclusion is
property should be awarded to the surviv
ported by
express
the
wording of our
ing spouse.
statute,2 which is the logical result of its
development,
historical
and
our deci-
any equitable rights
If
has
daughter
the
law,
sional
including
Harper
case re
they
in and to the
would not be
to,
ferred
which has stood as our law for
affected
this decision.
years;
any
and
change
(which
therein
I
I
let
his
would
each
bear
own think is neither necessary
desirable)
nor
costs.
legislative.
be
appreciated
It is
that there are some cas-
CROCKETT,
(concurring in re-
Justice
es, mostly of older vintage,
say
which
sult,
dissenting
part):
but
upon the death
of one
during an in-
terlocutory period the divorce action
I am in agreement
opin-
with the main
However,
abates.
the broad assertion that
ion’s
judgment
affirmance of the
of the
aspects
includes all
of the action in-
trial court. This, because I believe
its
volves a
distinguish
failure to
between the
respects
tion was correct in all
in har-
such,
marital status as
as distinct from
mony
requirements
equity
with the
of
property rights. Whereas,
accept
justice. However,
impelled
amI
to voice
view
cases,
of better considered
ap-
disagreement
opinion’s
with the
criticism
proach the matter more realistically, and
of
the case In re
Estate1 for the
regard the whole proceeding
equitable,
following reasons:
any
and so treat
subsequent change of the
First,
opinion correctly states,
as the
justice
decree
equity
as the
of each
point
may
raised;
require.
was not
and the comments
(1954).
among
reasons,
1. 1
We do this
vorce husband’sdeath. COMMISSION, UTAH STATE ROAD Appellant, Plaintiff that a divorce action does not The idea automatically on death of abate RANCH, Corporation, The STEELE a Utah support Cap- also finds the Ohio al., Respondents. et Defendants Caprita.7 rita v. There the case had been No. tried its and the court had announced Supreme Court of Utah. it judgment, but had not caused to be April 3, 1975. “journalized” husband died. before the (abate) Defendant wife moved to dismiss grant action. The court refused to appeal sustaining
motion. In it was pointed authority out that had the court
enter a decree at the time it rendered the proper- judgment; and that the decree and ty award should not be disturbed. regard Leah,
In daughter execu- trix estate, being for her mother’s substi- party: harmony tuted as a with what above, has my opinion been stated it *5 authority. trial court acted within his If a pe- dies riod appear and it is made to court controversy there over the decree; interests settled and that it or desirable that there be fur- therein, ther proceedings I can see no rea- why son a party’s executor or administra- substituted, tor should not be the same as any action, 25, provided other in Rule Recognition principle U.R.C.P.8 of the herein stated: that the decree of divorce
as to rights after the continues death of a indicated the case Allred,9 plaintiff of Allred where the (cid:127)wife was attempting to collect the de- from payments
ceased husband’s estate accrued
support
money.
consequence
of what I have said
above,
judgment,
would affirm the
attempting
without
disturb
the law as
set
in the
forth
case of In re
Es-
emphasis
(All
tate.
added.)
5,
483,
25, U.R.C.P.;
Bradbury
7. 145 Ohio St.
60 N.E.2d
158 A.L.R.
Rule
see
v. Rasmus-
1204;
Am.Jur.2d,
sen,
and see
also
2d
Divorce
16 Utah