4 Iowa 509 | Iowa | 1857
Lead Opinion
This bill was filed under section 1485 of tbe Code, wbicb gives to tbe court decreeing a divorce, tbe power to make such order in relation to tbe children and property of tbe parties, and tbe maintenance of tbe wife, as shall be right and proper, and wbicb also provides, that “ subsequent changes may be made by tbe court in these respects, when circumstances render them expedient.” Does a proceeding asking such change, os modification, abate by tbe death of tbe husband ? is tbe only question presented for our determination. We clearly think it does. What is alimony, and what its original obj ect and purpose ? As stated in Jolly v. Jolly, 1 Iowa, 9, it is the nourishment — the maintenance— tbe allowance made for tbe support of tbe wife, which is givep and fixed by tbe proper court, out of tbe husband’s estate, when they are legally separated. So in Bishop on M. & Div. § 549, it is said to be the allowance wbicb .a husband pays by order of court to bis wife, who is living separate from him, for her maintenance. And in Wallingsford v. Wallingsford, 6 Har. & J. 485, it is stated to be, not a portion of bis real estate to be assigned to her in fee sim
■ But notwithstanding all these modifications, we do not understand that any court has yet held, that the wife, after the death of the husband, may ask an allowance of this character. Nor is there any case to be found in the books, as we believe, recognizing the right of the wife to prosecute her suit for alimony, commenced in the husband’s lifetime, after his decease. Where the bill is for a divorce, and ali
But it is said that a decree may be made giving to the wife an annual or other allowance during her life, which may extend, and be enforced against his estate beyond the life of the husband; and if s®, a court may also modify a former decree, either in favor of or against the husband, after his death. The answer to this is, that in such a case, the court has acted upon the whole question, during their joint lives, and has decreed to her a definite and fixed sum. This decree has the same force and validity as any other judgment, and may be collected in the same manner. It is a fixed, ascertained, and subsisting debt against him, and upon his death, against his estate. Not so, however, with a claim for alimony which never has been settled; or where the wife, after his death, seeks to increase the amount allowed in his lifetime. It is not a demand, definite in its
But it is claimed, that this case comes within section 1698 of the Code, which- provides that actions do not abate, by the death of either party, if from the nature of the case, the cause of action can survive. Much that we have before' said, is applicable to the argument • attempted to be drawn from this section.. It might admit of a doubt, whether a proceeding of this character is an action within the meaning of this provision. But however this may be, we think that whether the action or proceeding has been commenced or not, the remedy of the party is gone, or must abate, unless the cause of action is of such a nature that it can survive.. What are such causes of action, we determine from the common law and our own statutes. But what court ever held, or what, provision of our law contemplates, that after1 the death of the husband, the wife may, by suit, claim alimony from his. estate? If such an action or proceeding should be commenced after his death, no person, perhaps; would claim that, it could be maintained. So, if instead of by an original action claiming alimony, she should, after his!
Decree affirmed.
Stockton, X, dissenting.
Dissenting Opinion
dissenting. — I concur in the decision of the Court which affirms the judgment of the District Court.
But I dissent from that part of the opinion of the chief justice, which rules that the application made by the wife, to obtain a modification or change in the order allowing her maintenance from the husband’s property, abates by reason of the husband’s death, pending the application. My concurrence in the judgment of affirmance, is based upon the fact, that I do not understand from the record, that the question was made to the District Court, that the proceedings abated by reason of the husband’s death, nor does the record show that any such question was decided. It does appear, however, that evidence was introduced, tending to show that the applicant was not entitled to the relief sought ; and to all appearance, the judgment of the district was ren dered, upon the merits of the whole case, dismissing the application, after a full investigation, and after the examination of testimony on both sideb.- Such a judgment I would not disturb, unless it was manifest that there was an improper exercise of the discretion allowed, in granting or refusing, an additional amount for the maintenance of the
For these reasons, thus briefly stated, I dissent from the decision of the court, so far as it holds that the application for an increase in the amount allowed the wife, for her maintenance, out of the husband’s property, abates at the husband’s death.