208 Mass. 458 | Mass. | 1911
It is not denied that the Probate Court had the power under the provisions of R. L. c. 153, § 33, to make its order for the payment by the respondent of a monthly sum to the petitioner his wife ; and § 35 of the same chapter, by reference to R. L. c. 152, § 31, authorizes that court to issue execution for the enforcement of its order. But the respondent contends that the order was annulled and avoided, or at the least that it was made incapable of enforcement, without any further order of the court, by the act of the petitioner in resuming cohabitation with her husband.
As this statute merely provides “ a new method of enforcing
But the practice in England arose from the form of the decree, which provided for a separation until the parties should have become reconciled, and was continued in some of our States under the language of statutes which were construed to fix the same limit. See the opinion of Vice Chancellor Green in Jones v. Jones, 29 Atl. Rep. 502, containing an elaborate discussion of the question.' In States in which no such limit has been fixed but provision has been made by statute for further action by the courts and the revision or modification of such a decree upon the application of one or both of the parties, it has been held, in accordance with what seems to us to be the sound reason, that the' decree is not annulled, either permanently or temporarily, by the reconciliation or renewed cohabitation of the parties or by the act of one of them in condoning the misconduct of the other, but that these circumstances, like any other change in the situation of the parties, simply afford ground for new action of the court, by annulling, revising or altering its former order as justice may require. This was so held in New Jersey in the case of Jones v. Jones, ubi supra, and again in New York, in renewed litigation between the same parties, in Jones v. Jones, 90 Hun, 414. The same rule was declared in Hobby v. Hobby, 5 App. Div. (N. Y.) 496, citing and following the cases just referred to. It was acted on by this court in Albee v. Wyman, 10 Gray, 222, 229, and in
This rule must govern the case at bar. The statute expressly provides that the court after having made its order, “ may from' time to time ” upon application of either party “ revise or alter such order or make a new order or decree ” as circumstances may require. The manifest intention of the Legislature was that the order should not be vague and indefinite in its duration, liable to be abrogated or annulled by the mere act of the parties, and to be upheld or overthrown as paroi evidence might establish or fail to establish conduct of the parties more or less inconsistent with the grounds upon which it was based, but that the order once made should continue in force until revised or altered by the court itself upon proper application and after due hearing. Allen v. Allen, 100 Mass. 373, 374, 376. Graves v. Graves, 108 Mass. 314, 321. Sparhawk v. Sparhawk, 120 Mass. 390. Southworth v. Treadwell, 168 Mass. 511.
The right of the wife to enforce this order was not permanently taken away by her return to her husband. The order might have been made though she never had left his house. Bucknam v. Bucknam, 176 Mass. 229. We do not know upon what findings of fact the order was based. But it follows from the decision just cited that her right to obtain and to enforce the order was not necessarily destroyed by the fact that she had returned to his home. It is immaterial here that suits between husband and wife are not authorized by R. L. c. 153, § 6.
While this order for the support of the wife would cease at her death, it can be enforced against the husband’s estate after his death for arrears incurred during his lifetime. It is for this purpose regarded as a debt of record established by a judgment. Knapp v. Knapp, 134 Mass. 353. The liability for unpaid alimony may not, strictly speaking, be a debt within the legal meaning of that word. Allen v. Allen, 100 Mass. 373. Chase v. Ingalls, 97 Mass. 524. Barclay v. Barclay, 184 Ill. 375. In re Nowell, 99 Fed. Rep. 931. Audubon v. Shufeldt, 181 U. S. 575, 577, cited and approved in Leyland v. Leyland, 186 Mass. 420,
It follows that the rulings requested by the respondent were rightly refused. They were all either wrong as matter of law or wholly immaterial to the case on trial.
But under the terms of the report such order is now to be made as to the court seems just, which means of course such order as we find now to be required by law. One circumstance appears in the report which, although it has not been argued by the counsel, we do not feel at liberty to disregard.
During the pendency of the appeal, on or about April 14, 1910, the respondent died, and an administrator of his estate was appointed, who has appeared and defended the case. It is provided by R. L. c. 167, § 112, that any “ attachment of real or personal property shall be dissolved if the debtor dies before it is taken or seized on execution and administration of his estate is granted in this Commonwealth upon an application therefor made within one year after his decease.” It sufficiently appears from the date stated that the application for administrar tian must have been made within a year after the death. Therefore the attachment, though made by trustee process and though it seems to have been made upon property alleged to have been
The decree of the Probate Court must be modified by striking out that part of it by which the Chelsea Savings Bank was charged as the trustee of the respondent, and so modified must be affirmed.
So ordered.