15 N.J. Misc. 542 | N.J. | 1937
This suit was submitted to the court, without a jury, by consent, at the Ocean Circuit. The facts are not disputed. The question involved is whether the personal representative of the estate of a deceased wife can recover of her former husband unpaid installments of permanent alimony provided for in the final decree of the Court of Chancery of this state granting a divorce to the wife, that is to say, installments remaining due at the time of the death of the latter. The answer, it appears, must be in the affirmative, and that they may be reduced to judgment in a court of law.
Briefly stated, the facts are that on November 28th, 1927, the Chancery Court issued a decree msi, ordering, adjudging and decreeing that defendant, Frank White, and Elizabeth P. White (the decedent) be divorced from the bonds of matrimony. On February 29th, 1928, the court by final decree made the decree nisi absolute and in the usual form declared the marriage between the parties dissolved. In the decree defendant was directed to pay Mrs. White $30 each week as permanent alimony. In pursuance thereof, he paid the
Defendant’s answer set up three separate defenses: first, that the subject-matter of the present suit is res judicata, in that a final decree covering the subject-matter was entered in the Court of Chancery, and since the matters in issue were finally adjudicated in that court, the personal representative of deceased’s estate has no legal standing here to relitigate them. This, of course, is not the purpose of the suit, as .plaintiff relies on the record in the Chancery Court and the final decree in particular as the source of defendant’s duty to pay, the action here resting on his admitted failure in that respect. That such a suit may be brought in a court of law is now unquestioned. Second, that the alimony decreed in favor of plaintiff’s testator was a right purely personal to the wife and the right to recover any arrears terminated and ended upon her death. This appears, however, not to be so, as to accrued alimony to which decedent, in her lifetime, had a vested right and as to which a right of action survives to the personal representative of her estate after her death. Third, that the right to recover in the present suit alimony that accrued prior to July 6th, 1930, is barred by the statute of limitations. This defense was abandoned at the trial, as it appeared that defendant had remained out of the state during the period and could not, therefore, avail himself of the benefit of the statute.
Tn VanBushirk v. Mulock, 18 N. J. L. 184, it was held that at common law an action of debt would not lie on a
Since the right to unpaid installments of alimony provided for in a final decree of divorce becomes vested, it seems logical to hold that the right survives the death of the wife and lodge's in her estate, subject to suit through the personal representative. It was so held- in VanNess v. Ransom, 215 N. Y. 557; 109 N. E. Rep. 593, annotated in L. R. A. 1916B, 852, which, see, with footnotes. The ruling there was that an action by a woman to recover unpaid installments of alimony under a decree of divorce is not abated by her death, but the personal representative may be substituted in her place and prosecute the action to termination. The case carries the texN(at p. 855) : “Even when the award is in the nature of periodical allowances for support, so that it termi
On the facts here involved, it sufficiently appears that defendant has no defense to the present action. It follows that plaintiff executrix is entitled to judgment against him for the sum of $9,424, with interest from March 4, 1936, with costs to be taxed.