184 Mass. 488 | Mass. | 1904
Under the R. L. c. 153, § 33, the petitioner filed in the Probate Court a petition averring that she was living apart from the respondent, her husband, for justifiable cause, and that there was no issue of the marriage, and praying that he might be prohibited from imposing any restraint upon her personal liberty and from entering certain premises belonging to her, and that he should pay such sum as the court might order. On this petition the Probate Court made a decree stating that the petitioner was then living apart from the respondent for justifiable cause, and ordering that he be prohibited from imposing any restraint upon her personal liberty until the further order of the court. From this decree the respondent appealed to the Superior Court and the appeal was duly entered there. Afterwards the petitioner deceased, and the respondent moved that her executor or administrator be summoned as a party to the proceedings. The executor of her will then appeared specially and suggested the death of the petitioner, and moved that the appeal be dismissed. This motion was allowed, and the respondent appealed to this court.
A petition of this kind, in a case where there are no children of the marriage, is brought for relief which is personal to the petitioner and which cannot be granted with any effect after her death. Like an ordinary suit for a divorce, unless there are peculiar conditions, it is abated by the death of either party before the determination of the issue. Rawson v. Rawson, 156 Mass. 578. Brigham, petitioner, 176 Mass. 223, 226. Stanhope v. Stanhope, 11 P. D. 103, 108. It is clear that this suit would abate and the petition be dismissed were it not for the fact that a decree was entered for the petitioner by the Probate Court. That decree, with the appeal from it, raises questions which are not free from difficulty. By the R. L. c. 162, § 19, it is provided that such a decree or order “ shall have effect, notwithstanding an appeal, until otherwise ordered by a justice of the Superior Court,” etc. The R. L. c. 153, § 36, declares that, “ If a court having jurisdiction has entered a decree that a married woman has been deserted by her husband- or is living apart from him for justifiable cause, . . . the surviving husband shall not be entitled under the provisions of section sixteen of chapter one hundred and thirty-five to waive the provisions of a will made
It has been said in many cases that when rights of property have arisen, founded on proceedings for a divorce, and one of the parties has deceased before the conclusion of the proceedings, his representative may become a party to the suit for the purpose of enabling the court to determine the issue and make the decree which shall settle such rights. Thomas v. Thomas, 57 Md. 504. Downer v. Howard, 44 Wis. 82. Danforth v. Danforth, 111 Ill. 236. Nickerson v. Nickerson, 34 Ore. 1. Israel v. Arthur, 6 Col. 85. See also Barney v. Barney, 14 Iowa, 189 ; Wilson v. Wilson, 73 Mich. 620; Nelson on Divorce, § 729 a. We do not know the value of this right to waive the provisions of the petitioner’s will. Plainly it is a right of property which has some value. If the effect of the appeal had been to vacate the decree, we should think the most natural and logical view would be to say that the death of the petitioner before the entry of any effectual decree leaves the parties as if no suit had been brought. But under
The effect of appeals and the jurisdiction of the appellate court in cases of this kind were considered at length in Smith v. Smith, ante, 394. That decision makes it plain that it became the duty of the Superior Court, after the entry of the appeal, to proceed with the case so far as necessary to make an order which should finally dispose of all the questions involved in the appeal. The decree to be certified by the Superior Court to the Probate Court in this case should leave nothing for further action in the lower court. The order allowing the motion was erroneous.
Order revoked.