Purdon v. Blinn

192 Mass. 387 | Mass. | 1906

Knowlton, C. J.

This is a petition brought under the R. L. c. 144, § 9, relative to property in the hands of a person appointed receiver of the estate of a resident of the Commonwealth who “ has disappeared, absconded or is absent therefrom and has left no agent therein and his whereabouts are unknown.” This section is as follows: “ The court may order said property or its proceeds acquired by mortgage, lease or sale to be applied in payment of charges incurred or that may be incurred in the support and maintenance of the absentee’s wife and minor children, and to the discharge of such debts as may be proved against said absentee.”

The petitioner was the wife of the absentee, and she obtained from him a divorce a vinculo, with a decree for alimony in gross to the amount of $4,000. For this execution was issued, and she made her petition to the Probate Court to have it proved and allowed as a debt against the estate of her former husband, in the hands of the receiver. The principal question in the case is whether this is a debt, within the meaning of the statute.

The origin of the claim in the obligation of the husband to provide for her support does not militate against its allowance; for the statute provides for the payment of charges of this kind which are not directly debts. A decree for alimony in a gross sum, which is a final adjudication for the payment of the amount named, is within the constitutional provision that “ full faith and credit shall be given in each state to the . . . judicial proceedings of every other state.” A suit may be brought to enforce the payment of it as a debt, in a State other than that in which it was entered. Page v. Page, 189 Mass. 85. An obligation under such a decree is plainly in the nature of a debt, and for most purposes it can fairly be called a debt. In Gray v. Bennett, 3 Met. 522, 526, the court said : “ The word ‘ debt ’ is of large import, including not only debts of record, or judgments, and debts by specialty, . . . and in its popular sense includes all that is due to a man under any form of obligation or promise. And long ago it was held, as expressed by Blackstone, that ‘ whatever the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.’ ” In Howard v. Howard, 15 Mass. 196, in referring to a liability for alimony, the court used this language: “ The debt is certain, and it is proved by record; and the decree is, in effect, as much a judgment, as if rendered on the common law side of the court.” Mr. Justice Field, in Knapp v. Knapp, 134 Mass. 353, said, “ A decree for alimony, whether for alimony already due, or to become due in the future, is in a certain sense a debt of record established by a judgment.” So in Chase v. Chase, 105 Mass. 385, Mr. Justice Morton, speaking of a divorce a vinculo and divorce a mensa et thora, said, “ The judgment for alimony in either case creates a debt of record in favor of the wife.” It was held in that case, as it previously had been held in Livermore v. Boutelle, 11 Gray, 217, that a decree for alimony is a debt within the St. of 13 Eliz. c. 5, as to conveyances in fraud of creditors. In Knapp v. Knapp, 134 Mass. 353, and in Burrows v. Purple, 107 Mass. 428, there is language recognizing a decree for alimony in gross as a kind of debt.

The case of Bailey v. Bailey, 166 Mass. 226, following and explaining Chase v. Ingalls, 97 Mass. 524, decides that a liability for alimony is not “ debt or damages in a civil action,” within the meaning of the statute in regard to arrest upon execution. But it hardly affects the general question with which we are dealing. The decisions that claims for alimony are not provable in bankruptcy rest upon reasons that have little application to this case. We are of opinion that the word “ debts” in this statute is used in its broad signification, and includes claims like that now before us.

The remaining question is whether this debt can be proved against the absentee and allowed against the property in the receiver’s hands without personal notice to the absentee. From the nature of the case we think it .must be provable, upon a proper general notice to the receiver and to persons within the jurisdiction interested in the estate. The reason for the appointment of the receiver is that the whereabouts of the owner of the property are unknown and he has left no agent properly to represent him in caring for his property, and to perform his obligations. In most cases to which the statute applies it would be practically impossible to give personal notice to the absentee. We are of opinion that the notice in the present case was sufficient. Bonnemort v. Gill, 167 Mass. 338. Minot v. Purrington, 190 Mass. 336.

Decree affirmed.