*1 Staunton D. D. Foster, Rhea Foster &c. Executrix, v. Gertrude 10, 1953.
September No. Record Present, theAll Justices. case. states The opinion & G. Martin error. Sons, plaintiff James *2 Paul M. defendant Samuel Goldblatt and Lipkin, in error. delivered the of the court. J.,
Whittle, Rhea D. filed a motion in the Cir- Foster for judgment cuit D. Court of Norfolk Gertrude City against Foster, Foster, executrix estate of deceased. Hugh The of the suit was the object recovery alimony allegedly due the under a decree of that entered on court, plaintiff 12, 1930, which the had been by February plaintiff granted a divorce a vinculo matrimonii from Foster. Hugh
The decree contained the “The following provision: doth further order and decree that the de- adjudge, fendant to the Foster) each $125.00 (Hugh pay plaintiff month for until her death or in either alimony remarriage, of which events said shall cease and no payments longer abe defendant.” charge against Foster died in and all due
Hugh January, of his time death had been The motion for paid. that no had made been since alleged judgment payments death, Foster’s was in the sum of judgment sought $1,125, nine representing monthly payments January, 1952, the date of the suit. through September,
The executrix filed a demurrer the said asserting motion for showed the deceased, Hugh judgment Foster, had what due her was De- paid plaintiff through cember, 1951, and died in which death January, caused further to cease.
The Circuit Court of of Norfolk sustained the City suit, demurrer and dismissed the to which we ruling granted writ error. plaintiff While three of error are relied assignments upon by she admits that involve the same plaintiff, that they question, is, whether decreed continued payments after the death of Foster until decree, altered Hugh Plaintiff contends or remarriage petitioner. until should continue intended the “said decree payments Foster sooner if said death or even
her Hugh remarriage, died.” that, in the hand, contends executrix, other contract, of a
absence payments stipulation terminate an absolute divorce decreed in connection further contends the husband’s death. She of the decree upon plaintiff’s terminating alimony in- and that no mere death or surplusage, remarriage the court intended therefrom that ference is to be drawn the death of to extend by implication the husband. is not one in the instant case observed that
It will be and wife between husband an agreement whereby volving himself to make his husband binds monthly pay *3 live, his after as she ments so continuing long may cannot a husband wife While death. lawfully bind well settled that a husband divorce, it is to a may sums, intervals, himself to his wife agreed payable pay a such or death. And stipulation extending beyond decree if embodied in the divorce contract equitable may 1950, 20-109; the court. Va. Code, approved 329, N. E. 8 Am. S. R. 125 Ill. v. Storey, Storey 182 N. Y. 320; Wilson v. Hinman, 1 L. R. A. 232; Stratton v. (N. S.) Stratton, 2 L. R. A. N. E. 779; 2 Nelson on Divorce and 373, Am. Maine Rep. § 14.63, note 33. ed.), (2nd Annulment con- concerned with are here We alimony provisions a vinculo where matrimonii, divorce a decree for in tained the husband to his former the sole springs liability that from The case decree. distinguished decreed to be money temporary suit, a or of an mensa during pendency paid still decree enforces divorce, where merely the husband to his wife. on the existing a mensa courts to Statutes Virginia grant authorizing a the common law. Divorces are divorces declaratory statute. hand, creatures of are vinculo, other wholly 337, 338, 10 S. E. Eaton v. Davis, in case be answered the instant basic question a Virginia, is whether a court entering chancery vinculo matrimonii, divorce power, in the or contract between absence of any stipulation death of to extend parties, alimony payments beyond no such the court has husband. Our conclusion is that power. 20-107, Code, 1950, inter Section alia: “Upon provides, * * * from the dissolution of a
decreeing bond of marriage, * * * make such fur- the court matrimony may ther decree as it shall deem the estate expedient concerning them, and the maintenance of the or either of » * * * Section 20-108 court provides upon petition may from time to time its decree regarding custody of children.
Section of either provides “upon 20-10.9 petition increase, decrease cease, or cause to party may * * * accrue, thereafter the cir- any alimony may however, cumstances make if may proper; provided, or contract to whom such stipulation signed by party relief otherwise be is filed awarded with the might plead- then no decree order ings depositions, directing suit or counsel shall fee payment entered money, in accordance or con- except stipulation tract unless such raise thereto party objection prior decree.” entry
Section 20-110 “If to whom ali- provides: any person *4 shall been awarded thereafter has mony marry, such-alimony cease the date shall as of of such marriage.” §§ These 20-107 20-110, statutory provisions, through were contained in the code of 1919 as section 5111. will be It observed the statutes nowhere provide extend lives of the alimony may joint parties, in absence of or contract them. between stipulation Francis, Francis v.
It was said Judge by Staples 283, of the (72 Gratt. Va.) “Alimony proportion her maintenance husband’s estate allowed to wife for their and only support during period separation, with the death their It ceases continues with lives. joint Divorce, of either of the on Marriage parties. Bishop § 350.” CV, Code dealing
Chapter “Divorces”, the deci- and effect at the time of force nor Case. Neither this sion in Francis chapter (and since enacted Virginia legislature added amendments new sections have been there many ex- 1873) our courts discretion has since given expressly after the death of the husband. tend alimony payments as afore- Code 1950, supra, Section provides, Until said, that marriage stops payment alimony. it was not clear enactment of this statute whether It were such marriage. sig-. stopped the Code contains no nificant analogous pro- Francis Case decided that death alimony. viding stops be- does not extend in unmistakable and the lives” of legislature yond “joint rule. this established no made attempt (1891), on Divorce In Marriage, Separation Bishop of either of the “The death 349, it is said: parties stated, there Therefore dissolves marriage. already when either the husband law common can there are But the States statutes is dead. in some of life, a lia- the wife’s and so during it creating permitting v. estate.” Smythe deceased husband’s Citing bility v. Storey, Berry Storey supra; 73 Ga. Banks, Cf. (1951). 208 Ga. 66 S. Berry, Marri- (2 same on volume section 846 In Bishop rule, unwritten said: this is etc.), “By age, life, term the wife’s so what- be ordered cannot decree, dies; ends when the husband it the form of ever her, main- while a maintenance because death.” at his her ceases tain *5 it is
In American stated: “According Jurisprudence decree, connection with of granted weight authority, divorce, an of absolute for the regular periodical payments maintenance and is wife for her support absence, death, in the at terminated the husband’s upon least, some in the which would re- order stipulation after his death.” 17 Am. Divorce and Jur., quire payments § § Code, 473. Va. (See p. Separation, supra.)
“The to receive and the right corresponding it, are considered as pay being personal, generally on of either of the where no terminating exists and the or decree contrary judgment ” * # * silent S., Divorce, 27 C. subject. J. § 240(b), In Eaton v. Davis, (176 Va., supra 340), it is said: “The material which is thing by supplanted right of coverture to simply during ## * # # * and maintenance . The is not a right property * # # It duration, is uncertain in right. lasting possibly month, aor more. It ceases day, year entirely upon the death of either husband or wife. So much for the wife’s coverture. right during “What to this when the happens right marriage is dissolved a final divorce decree? As an incident to the divorce the court substitutes for this what #* * termed (the are un alimony. They payments) certain in duration cease the death of either party.”
“The of divorce causes is jurisdiction purely statutory, and the court in such cases possesses powers involving matters those conferred statute, property ** * .” 2 on etc., 1231; Barnes Marriage, Bishop v. American Fertilizer Co., Va. 707, 130 S. E. 269, 277, Va. Fling Ring, S. E. (2d) 471, 165 A. L. R. “ * * * (W)e clear, think it in the absence of certainly is limited to agreement, (dower of those settlement rights parties property law which have arisen out curtesy) by operation relation, the marital of their respective protection *6 Va., Barnes v. American Fertilizer Co., estates.” supra, clear au- are in the absence legislative We of unwilling, rule in to the settled Virginia by extending thority, the after the death of husband of alimony payment or contract between (unless there is stipulation far our of To do so would go beyond concept parties). hus- which meaning alimony, contemplates life. The band shall his wife his during obligation further. is in accord with extends no This holding clear, in this established weight authority country.
It is reasons by plaintiff assigned argued case Buchanan in the of Morris Henry, Mr. Justice with (1952), 70 S. equal apply Morris Case we here. In the force permitted payments of the infant to continue after daughter (The father. trial court refused to the death of the permit so continue and there was alimony payments this It out in the no ruling.) pointed exception the decision there reached was in accord Morris Case Va., clear, (193 established with weight authority. 641). at page are differences between
There well alimony recognized suits for the decreed divorce money children. The basic reasons infant maintenance of from different While the sources. two allowances spring and are associated inter become awards closely frequently decrees, this does not alter the in divorce reasons mingled of a their creation. The which obligation parent prompt the mere infant child of a outgrowth nor is it incidental thereto. as is divorce suit merely The ties of mar It is both social obligation. parental the decree but the be broken by relationship riage may severed. “The cannot thus and child good parent deemed to be the considera the child leading universally tion, other to which the claims of all persons yield # * # etc., on sufficient ”. 2 on Marriage, pressure; Bishop § 1161, supra,
Furthermore, cannot we con plaintiff’s tention that intended case the court instant to extend husband, after the payment wherein decree its ordered to be paid plaintiff “until her death or It not claimed remarriage”. by plain tiff that could in event extend her death, Code, provides expressly Therefore, cease her remarriage. in the inclusion had these contingencies legal effect and neither nor limited the enlarged obligation husband. No intent exclude that ali contingency would terminated the husband’s death is to be mony inferred therefrom.
The decree did therefore fair im- expressly direct that after the death plication paid of the husband. Wilson v. Hinman, Brandon v. supra; 463, 175 Tenn. S. W. v. Brandon, (2d) Berry Jur., 17 Am. Berry, supra; Divorce and supra, Separation, § 608, Note Even in jurisdictions possessing statutory authority to extend after the death of the husband alimony payments the decree must such intention. In such clearly express for continuance of after jurisdictions provision payments stated in decree or it will be specifically that the abate the death of either presumed payments upon v. 183 Wash. Murphy Shelton, 48 P. (2d) spouse. (1935); 17 Am. and Jur., Divorce Separation, § 611, note For reasons stated the is judgment
Affirmed. J., in Buchanan, in dissenting concurring part. in result. J., concurring Miller, in in J., dissenting part, concurring part:
Buchanan, I case that a with the in this disagree holding extend in pay- Virginia chancery That in ments death of husband. holding, broad my places comprehensive opinion, upon not found in its words statute limitation language and not desirable for this court to impose.
Section 20-107 of Code decreeing provides a divorce either from (1) (2) the dissolution of a marriage, board, (3) the bond of or from bed and matrimony divorce, “the make neither is entitled to court may party as it shall deem such further decree expedient concerning either and the maintenance of estate them, care, and maintenance of their minor custody # # added). .” (Emphasis i. thus to the court
The <?., given jurisdiction, power, and its related in with divorce is connection problems as broad as could used. about described that with the estate the mainte- respect says both, the enter such shall deem nance, court may own; mainte- Estate is property parties expedient. on; to live them is what nance expedient, required and suitable to the end in Webster, means view. apt says The end do what in view in divorce proceedings bad situation. best with a Morris S. Henry, last
Only year, statute, held that this same we court to decree a divorce authorized should continue after the death aof minor daughter there that a denial of that We said the father. *8 in cases would some to a court seriously impair equity infants; and interests of to its rights ability protect not the need of his infant a father does end food and shelter. children for v. from 90 Heninger Heninger, that case We quoted “ 193, 195, 18 E. statement ‘the 271, 275,
Va. S. was to to court evident legislature give purpose Ill discretion to estate of the largest respect moral, not relieve offending parent duty, ” social, 639, otherwise.’ Va. at S. E. 193 70 (2d) p. 422. token, the same the death aof husband does not end
By the need of wife his for food and shelter. It was said in v. 330, Eaton 341, (2d) 893, 176 Va. 10 S. E. Davis, 898, of the court respect amount that if the former wife an in- becomes valid, she “should not remain an of uncertain object charity, a final equity prohibited by decree for her relief. The alimony giving equitable maintenance or is such a right support alimony vary- ascertainment its never should ing thing absolutely final toas future instalments. Absolute ought inflexibility not to obtain.”
The there are well differ- majority says recognized ences between for the wife and support children; infant but this court in White said v. recently 162, 170, White, 448, Va. 24 S. E. (2d) 452, that and the of a father to his in- “Alimony obligation fant children exists of statute.” In Buchanan independent 279, v. 255, 612, Va. Buchanan, 622, 6 S. E. (2d) said we of the contract there involved that its made for provisions the wife and the children out same soil.” “grew of the husband to his is not less duty than his their infant and the per- formance of both is a matter of concern. “A decree public more an than order for the something pay- ment A husband who his wife money. wronged A continue to contribute to her decree for support. ‘is an order a husband to compelling wife, and this is as well as marital moral duty—a public v. Branch, Branch well as 144 Va. obligation. legal 49, S. E. 303.” v. Va. Capell Capell, v. 101 S. E. E. West 126 Va. West, 178 S. S. Ring, Ring *9 112 all real
A the decree for constitutes lien Va. 86 a husband. Isaacs v. Isaacs, estate of E.S. 105. in future install- in a
But decree for alimony, payable shall not ments, that such the court may provide it estate, the real be lien on husband’s may designate lien; which it shall be a or sub- real estate on particular such a lien for either accrued release sequently Code, to accrue. 8-388. in a have inherent
Courts jurisdiction proper equity v. case of statute. to grant alimony independently Heflin Va. S. E. Heflin, 177 exists, in If of difference sort origin, duty, purpose the between no it seems the makes clear statute, with to the distinction between them given respect power the court deal them. to both statute to the to with As the shall make such decree it shall deem says expedient. in Morris v. the we held Henry, supra,
Although the the court had to make child equity power estate, is now held under the same on the charge parent’s the same court without to make statute estate wife a husband’s charge alike. in terms to both applies although court, holds, to While so extend make alimony payments husband, the needs of the wife or wealth regardless husband, to volun- if husband willing yet done, be embodied that this agreement may tarily thus the court. the decree and approved Jurisdiction on the consent of made to contrary depend § 20, 11 Mich. rule. Jur., Jurisdiction, general p. Even me, the state of law. it seems to not to Such, ought have will not the court husband agree, ought though it the I think the statute power, gives power, husband should that the estate of delinquent require cir- with of his wife when helpless charged said in Capell, cumstances demand it. We Capell clearly 896, Va. at S. E. at respect p. an undertook the amount which agreement *10 “because it decree, a alimony previously provided can- touches a as well as a marital duty, jurisdiction public of the pais not be ousted parties by any agreement which the court itself does not adopt approve.” divorce, In case of a absolute if alimony payments with the for her which wife solely support stop depends husband, the death then the value of regardless She she look for husband’s estate to charity help. a cannot otherwise share in her husband’s estate because from bond of divorce of matrimony extinguishes § Code, her marital in his 20-111. right property. situation, a
I not such do believe to remedy power courts, which it seems me statute to the to gives power said in Morris v. As we Henry, supra, ought of similar rejected. there held vested in the courts with to be of would to the possession respect not result in its The exercised in all cases. courts being use could be trusted to when equity power only necessities of case and the ends of justice required. E.
In Hale v. 108 W. Va. S. Hale, State, statute of that West court said Virginia “of the same as our section was sufficient a the trial court breadth to warrant requirement by after out of husband’s estate paid permanent his such course is death, when, in the chancellor’s opinion, and right.” just what are so I do think we holding by precluded (31 Gratt.) in Francis was said Francis, 330, 10 Va. S. Eaton v. Davis, supra, of section 20-107. case construction Neither involved act construction of an concerned with the Francis Case was The husband of colored marriage persons. legalize to make a had been monthly payment required his with wife, his but charge attempt support estate. The husband after the died granted appeal the court held that the ceased with death. The Eaton Case involved amount of changing question under what is now 20-109 of the Code. Neither case deals with the with provision which concerned, we are now and neither it to requires said now that under section 20-107 is without equity a husband’s estate charge payment alimony. Each of those cases holds in accord with the merely general Divorce, rule thus stated in 27 S., b, C. 999: J. “The to receive and the . right corresponding it, are considered pay being personal, generally on the death of either of where no terminating statute to the exists and the or decree is contrary judgment silent on the subject.”
I with that which holds the decree was not here sufficient to extend the payments the husband’s death. such a Since is not beyond the usual provision *11 and when be based cir- made on
practice, cumstances out of intention it ordinary, require should be stated in or the decree be an unmistak- expressly able inference from used. v. Shelton, Murphy language (2d) S., P. 183 Wash. 27 C. supra, p. J. in result: J., concurring Miller, Less than months in Morris eighteen ago, by opinion 70 S. E. which I Henry, dissented, a this court decided that in divorce a suit court that after of of was decree empowered equity father, with his estate of his infant charged child whose awarded mother. In custody and of court to so opinion authority from section Code is said to be derived material to that that section decision and to us is as before follows: this case now # # # * * * from the bond divorce decreeing “Upon * * * court make such further may matrimony deem the estate and decree as it shall expedient concerning them, and either of maintenance minor care, maintenance of their and custody # [*] # ” in Morris v. Henry, me no dissent was written
Though ex- did either 20-107 not it was view that section my broad confer such power upon pressly implication that courts of It is not contended equity equity. the enactment of this Virginia enjoyed power prior intended to had the the statute relied and legislature upon, would, I far-reaching endow them with such authority, think, said so in have language. plain explicit 644, 135 A. 50 A. L. R.
In Blades v. 151 Md. Szatai, and relied the statute to be invoked sought upon the court in such broad divorce give authority provided to direct “who shall have the cases should be empowered of the children and be charged guardianship with their custody maintenance, and time may any annul, such order in relation to thereafter vary modify for the children.” In liability deciding the father’s estate after children could imposed upon indicated death, court said that language quoted with “had in mind and were the lawmakers dealing ” * * * individuals, not with estates of decedents living an unwarranted and “it would be legis assumption a construction lative intent to such put ” * * # the deceased father the estate of as to charge one or of his children. more in the rendered case now before In the today which was said to em- us, in section 20-107 the language court to decree that made sup- *12 Infant the father’s estate after child out of of an port the court to held insufficient death is father’s empower I divorced wife. for so as to do agree not authorize the does statute (section 20-107) out of accrual and decree the payment think, That, have I after his death. estate husband’s in Morris v. Henry, supra, held also been regard the court’s to decree payment support money an infant child Thus, after its death. father’s I think the two are to that extent in conflict. opinions They split and I am confident that the statute, intended legislature no such result. I do not with that court’s in this case that re-aflirms decision in Moms v. Henry, supra. conclusion is that the did not
My legislature 20-107 intend such em- as to far-reaching consequences the court to the estate of the impose liability upon deceased ex-husband for the estate of the deceased father for established Long support. principles courses of law should close, nice and changed by That should be left to conflicting judicial interpretation. and be definite and reason- legislature accomplished by certain ably legislation.