17 Utah 113 | Utah | 1898
This action was instituted by the plaintiff against the defendant, as executor of the last will and testament of Jesse J. Murphy, deceased, and involves the sum of $447, claimed by virtue of a decree, and subsequent modification thereof, made by the district court of the late territory of Utah, in an action for divorce brought by defendant’s testate against the plaintiff. In that case the defendant (plaintiff herein) filed a cross complaint, and a decree was granted in her favor on her cross complaint, by which the bonds of matrimony existing between the parties were dissolved, and a certain sum of money decreed to be paid monthly, by the defendant therein, to the plaintiff, for the support of their two minor children, during their minority, and until they would be of age. To secure the payment of such sum, it was decreed to be a lien on certain property of the plaintiff in that suit. The
The material question to be determined is whether, under the decree made in the proceedings for divorce, as aft-erwards modified, and under the law, the court was authorized to make the decree in controversy herein. Goun-sel for the appellant contend that the payment of the money for the support of the minor child could not be enforced after the death of the testate. The rule which counsel would here invoke was doubtless applicable at
Section 2606, Comp. Laws Utah 1888, so far as material here, reads: “When a divorce is decreed, the court shall make such order in relation to the children and property of the parties, and the maintenance of the wife, and such portion of the children as may be awarded to her, as may be just and equitable: * * * provided, further, that when it shall appear to the court at a future time, that it would be for the interest of the parties concerned, that a change should be effected in regard to the formal disposal of children or distribution of property, the court shall have power to make such change as will be conducive to the best interest of all parties concerned.” This statute is broad and comprehensive. Under it the court has power to make such a decree as the circumstances may warrant, and doubtless, if there is danger of the father squandering the estate, or if, from hostility or other cause he is likely to refuse maintenance to his wife, or support to his children awarded to her, and thus leave the children to be supported by the mother without aid from his estate, the court may make such order, respecting the property and the support and maintenance of the wife and children, as is just and equitable, and such order or decree may be made to continue in force after his decease; and the court may afterwards, if occasion shall require it, make such change in any decree as “will be conducive to the best interest of all parties concerned.” The court may also properly require the husband to furnish security where there is danger that he will dispose of his property by conveyance or squander it, so that nothing will remain upon which the decree can operate. Test
Nor was it improper, under the terms of the original and modified decrees, for the court in this case to decree the property to be sold, and the proceeds applied to the payment of a sum, equal in amount to that which was ordered to be paid during the minority of the child, and have the same paid to the clerk of the court, to be paid by him to the plaintiff as it becomes due. The court had the right to enforce the former decrees, and foreclose the lien upon failure of payment! and its power to do so was not affected by the death of the testate, and, if the proceeds shall be insufficient to satisfy the claim, it may enforce payment of the balance out of the estate. Miller v. Miller, 64 Me. 484; Storey v. Storey, 1 L. R. A. 320; Carson v. Murray, 3 Paige, 483; Burr v. Burr, 7 Hill, 207; Stratton v. Stratton, 52 Am. Rep. 779. The cases cited by appellant do not appear to be in j oint under our
We cannot sanction appellant’s contention. It is unsound, as being at variance not only with the decrees of the court and the law, but also with justice for it is the solemn duty of every husband and father to support his wife during life, and his children during their minority, suitably to their station in life, and, if he fail to do so, every principle of justice demands that they be thus supported out of his estate. This is, doubtless, what the court endeavored to do in this case, as is apparent from an examination of the several decrees. We are of the opinion that the decree in the case at bar is valid, and, as there is no reversible error in the record, the judgment must be affirmed. If is so ordered.