ANONYMOUS

ANONYMOUS. N. Y. Supreme Court; First Department, June, 1880. Husband and Wive.—Divorce.—Alimony.—Executors and Administrators.—Waiver. When a decree in an action for divorce is made, in the State of Connecticut, awarding alimony to the wife, she can bring an action in this State, after his death, against his legal representatives to recover the arrears of alimony due her thereunder. In such a case it is not necessary to obtain permission of the foreign tribunal before beginning the action here. Alimony in either Connecticut or Hew York, is a debt of record, or an interest in the estate of the husband, which cannot be discharged so long as the decree stands, except by payment or by release. In the State of Connecticut a decree directing the payment of alimony in effect charges the amount to be paid upon the estate of the husband, and vests in the wife an absolute right to the same out of such estate so long as the decree remains in force. A failure to bring an action for the alimony as each installment ' becomes due will not be a waiver of her right to collect it from his legal representatives. Trial before a referee. This was an action against the estate of a deceased person for unpaid alimony. The claimant was the former wife of the decedent, and the mother and guardian of Ms two children. She obtained an absolute divorce from him in 1866 in the state of Connecticut for willful desertion, pursuant to the laws of that State, and was awarded the custody of the children, and, as alimony, the household furniture, books, wearing apparel and $12 per month, payable monthly, and to continue until the court should otherwise order. The regularity of the proceedings and validity of the decree were not disputed. No other decree was ever made, and all that the claimant ever received on account of alimony was $25, some three months after the entry of the decree. When the divorce was granted, the husband was living in New York, and continued to be a non-resident of Connecticut until his decease. About a year after the divorce he married a second wife. He died testate, bequeathing all his property to his second wife and making her his executrix with another his executor. The amount claimed was the unpaid alimony and accrued interest thereon under the decree of divorce. The claim was duly presented to the executor and executrix and disallowed. ' This action was then brought under the statute against them. They based their objections upon the following grounds, to wit: 1st. That the claim, from its nature, could not be enforced by any court or tribunal other than the one which created the claim or liability by pronouncing its judgment or decree. 3d. That it was merely a personal claim, existing only against the deceased so long as he lived, and not. surviving as against his heirs, executors, administrators or assigns. 3d. That this court had no jurisdiction over, or in respect to it, and could not enforce it as against the estate represented by the defendants. 4th. That the claim was not a contract of record, or in the nature of a contract or claim, or demand, and should, therefore, be disallowed. It was referred by consent to Franklin A. Paddock, Esq., as sole referee, to hear and determine the matter. Roger H. Lyon, for the claimant, insisted that the claim should be allowed. I. Because it is virtually a judgment of the court of a sister state and of a competent jurisdiction, for money, in regular form and for an amount ‘or amounts certain: and the fact that it is for alimony is immaterial, and the court here is bound to allow it as it would an ordinary judgment for so much money without going further into any equities (U. S. Constitution, art. 4, § 1, Paschal's Annotations, 1st ed. p. 220, and cases cited in note). As to general remedies for enforcement of decree for alimony in arrears, see 2 Bish. Mar. & Div. §§488, 489, 498, 500 ; Lyon v. Lyon, 21 Conn. 185. The fact of the delay in collecting the alimony as it accrued under the decree, or the fact that sometimes in special cases decrees for alimony on application are changed is no reason why it should not be paid. The record shows so much money due and unpaid and the court is bound to accept this fact and award the claim (Stillwell v. Carpenter, 2 Abb. N. C. 338-369; 59 N. Y. 414 ; 63 Id. 639). II. At least the court is bound to give it the same validity and effect that the courts of Connecticut would give it (Furguson v. Crawford, 70 N. Y. 253-261, and cases cited supra). III. By the laws of that State, such a judgment is a valid claim against the estate of the deceased (Smith v. Smith, 1 Root, 349; 2 Bish. Mar. & Div. § 441; Lyon v. Lyon, 21 Conn, 185 ; Piatt v. Piatt, 9 Ohio, 37.) It is rather the creature of statute law than of the common law, and is to be distinguished from alimony as defined in the English cases under the ecclesiastical law. Divorces were granted a mensa et thoro and not a vinculo. The parties were not really separated. Husband and wife were still one, and hence it was considered that an absolute title to the portion of his estate, allotted to her for her maintenance, was not vested in her. The wife still had her dower, and the husband, right to curtesy and his wife’s personals; but if the divorce be absolute then all these property rights cease, and it is but right and just, that, so long as the wife lives, she should receive for her support, as her property, vested in her by absolute right, what the court has said the husband should pay to her (2 Bish. on Mar. & Div. §§ 350-377, 474. 2 Burns Eccl. Law (8th ed.) tit. Marriage, p. 484, X. Trial of Marriage, and note 4, also XI. Divorce, and cases in notes p. 496; and XII. Alimony and cases in notes, p. 506; Gibs. 446, 335; Moore, 683; 3 Salk. 138; Id. 505. 506,508, note 7; Cro. Car. 16, and note 5 ; 3 Bl. Com. 94, 95). The early settlers of Connecticut struck out an independent path as to marriage and divorce (See introductory chapter to 1 Root’s Reports—Marriage purely a Civil Contract; 1 Swift’s Dig. pp. 24, 25). The effect of the divorce a vinculo, under the ecclesiastical law, was not only to disolve the bond of matrimony, but to declare the marriage void ab initio ; but in Connecticut the effect was to disolve it, not because of its invalidity, but of the subsequent violation of the marriage obligation. Alimony in Connecticut is a vested right (1 Swift's Dig. 25 ; Sanford v. Sanford, 5 Day, 353; Conn. R. S. 1875, ch. III., §§ 1-5 ; Lyon v. Lyon, supra; 2 Swift Dig. 161, 254, 255). These rights remain so long as the decree remains unchanged by the court. The death of the husband does not affect the right of recovery (2 Bish. §§ 438, 515). IV. It is likewise a valid claim against the estate of the deceased by the laws of this state (3 Rev. Stats. (6th ed.) p. 159, § 74; Id. part 3, ch. 8, tit. 13, subd. 3 of § 1; Code Civ. Pro. §§ 1240, 1241, subds. 1, 2 ; Lansing v. Lansing, 4 Lans. 377; Geery v. Geery, 63 N. Y. 252; Howe v. Howe, 5 Weekly Dig. 460; Miller v. Miller, 7 Hun, 208.) It being collectible against the estate of the husband by legal proceedings—were the estate there—so is it collectible against such estate here by suit or by this application of reference (3 Rev. Stats. 6th ed. 96, 97, §§ 47, 48 ; Willard on Exec. 295, 296; Redf. Law and Pr. Surr. Cts. 291, 294, 296, and cases. As to alimony, see Forrest v. Forrest, 3 Bosw. 661; Shepherd v. Shepherd, 1 Hun, 240; affirmed in 58 N. Y. 644, without opinion; Burr v. Burr, 10 Paige, 20; affirmed in 7 Hill, 707. V. Similar rules prevail in other states, that if the husband dies leaving his wife surviving, the estate which he leaves is liable to pay the alimony due at the time of his death (Sloan v. Cox, 4 Hayw. (N. C.) 75; 2 Bish. Mar. & Div. § 438, and cases cited). VI. No leave of Connecticut courtin which the decree was granted is required as a pre-requisite to any proceedings thereon for its collection in the courts of this State (1 Swift's Dig. 583; 5 Wait's Act. & Def. 641; Rily v. McCord, 24 Mo. 265 ; McFarland v. Irwin, 8 Johns. 77; Cardesa v. Humes, 5 S. & R. 65; Davidson v. Thornton, 7 Barr, 128; Vreedenburgh v. Snyder, 6 Clark (Iowa), 39; Tindall v. Casson, 1 Harr. (N. J.) 94; Murray v. Baker, 5 B. Mon. 172; Treasurer v. Foster, 7 Verm. 52; Simonton v. Barrell, 21 Wend. 362). Guenther v. Jacobs, 44 Wis. 354, has no analogy to this case. A. J. Perry, for the defendants. [MAJORITY — F. A. Paddock,] F. A. Paddock, Esq., Referee.—This is a reference under the statute of a claim against the estate of-, late of the city of Hew York, deceased. The claim is based upon a judgment or decree of the superior court for the county of Hew London, Connecticut, made and entered September 13, 1866, adjudging that the petitioner (the claimant herein) be divorced from her husband (the respondent’s testator), and that he pay to her $12 per month, to be paid monthly, commencing September 13, 1866, until the further order of the court. At the time this decree was made, the defendant was a resident of the city of Hew York, and did not thereafter reside in Connecticut. About three months after the decree was entered, he paid $25 on account of the alimony but made no payment thereafter. He subsequently died, having meantime married a second wife (the respondent), to whom he left his property by will. The court in Connecticut never made any further order in respect to the alimony, nor was the decree ever reversed or recalled. The claimant now alleges that there is due to her from the estate of said testator a balance of alimony amounting to upwards of $1,500. This claim is contested upon these grounds : First. There is no debt within the contemplation of the statute or which can be enforced in this State. Second. That no proceeding to enforce the payment of the alleged alimony can be taken without leave of the court in which the decree was made; and, Third. That in no event can relief be had under the decree for more than one year prior to the death of the testator. It seems to me that none of these objections are tenable. Under the law of Connecticut, immediately after the making of the decree referred to, the petitioner became a judgment creditor of the respondent therein in respect to the installments of alimony payable under the decree, as the same became severally due, and could have enforced payment thereof by appropriate remedies (Smith v. Smith, 1 Root, 349; Lyon v. Lyon, 21 Conn. 185). There can be no doubt, therefore, that had the testator returned to the State of Connecticut, he could have been compelled by attachment, or by a suit in equity, as an incident or accessory to the divorce suit, to pay the alimony, and had he died, leaving property there, that property could have been reached for the purpose of satisfying any amount which might have remained due under the decree. If then the claimant was entitled by the decree of a court of competent jurisdiction in Connecticut to the payment of certain moneys, was she without remedy in the State of New York ? It seems to me quite clear that, under the Constitution of the United States, she could, by resort to the courts of that State, enforce the payment of whatever moneys became due to her under the decree of the court of Connecticut (Simonton v. Barrell, 21 Wend. 362). In Barber v. Barber, it was held that when a decree in an action for divorce is made awarding alimony, it becomós a judicial debt of record against the husband, which may be enforced by execution against his property, or by attachment against his person, issuing from the court which made the decree, and when that cannot be done because of the residence of the husband in another State, where the process of that court cannot reach him, the wife may sue him wherever he may be found for the purpose of recovering the alimony due to her, or to carry the decree into judgment there, with the same effect that it has in the State in which it was made. It cannot be doubted that if the claimant could have ■ brought an action in a court of this State against the deceased in his lifetime, for the purpose of recovering the alimony due to her, or to carry the Connecticut decree to effect, she may have the same, or an equally effective, remedy against his legal representatives after his death. Equitable as well as legal claims may be enforced against the estate of a deceased person, and a judgment debt is provable equally with a simple contract debt. I can see no reason why the claimant should be required to obtain leave of the court which made the decree to this proceeding. There is nothing in the statutes of Connecticut or New York which indicates that such leave should be obtained. . The claimant’s rights under the decree are absolute, and, at least so far as proceedings in this State are concerned, can be enforced without the permission of a foreign tribunal. • There is, therefore, in my opinion, a valid claim which may be enforced against the estate of the decedent, unless the claimant has waived her rights by neglect or otherwise. It is contended that, inasmuch as alimony is an allowance for maintenance from year to year, and may be reduced or terminated altogether for cause by the court granting it, the rule of the English ecclesiastical court in reference to waiver should apply. I do not think, however, that any such rule can be said to exist in this State or in Connecticut. Alimony required to be paid under a decree of court in either of these States, is a debt of record, or an interest in the estate of the husband, which cannot be discharged so long as the decree stands, except by payment or by release. The statutes of both these States seem to have determined the nature, amount and duration of alimony, and, in the absence of any provision looking toward a waiver or forfeiture on the part of the wife by reason of delay in enforcing payment, no court would be justified in applying the rule of the ecclesiastical court. And it may well be doubted that such rule, even if it existed, would reach this case, because, in the ecclesiastical court, the delay might be explained. And in this case it appears that the husband was continuously absent from the State of Connecticut, the domicil of the claimant, and it does not appear that the claimant Was aware of his whereabouts. This circumstance might, perhaps, justly be held to relieve the claimant from the extreme harshness of a forfeiture like that suggested, but I do not feel at liberty to place my decision on any such ground, for the reason that I am convinced that, in the State of Connecticut, a decree directing the payment of alimony, in effect, charges the amount to be paid upon the estate of the husband, and vests in the wife an absolute right to the same out of such estate so long as the decree remains in force. In this case the husband left an estate which may justly be said to include all the arrears of alimony, and is larger by just the amount remaining unpaid. I feel constrained, therefore, to hold that the claimant is entitled to be paid out of the estate of the decedent the arrears of alimony, with interest. Judgment was entered for the plaintiff upon the report of the referee. Appeal was not prosecuted. 21 How. U. S. 582.