In the Matter of the Judicial Settlement of the Accounts of Alice D. Williams and William R. Peters, as Executors, etc., of William Williams, Deceased, Respondents. Eliza T. Williams, Appellant; Lois Williams, an Infant, Respondent

In the Matter of the Judicial Settlement of the Accounts of Alice D. Williams and William R. Peters, as Executors, etc., of William Williams, Deceased, Respondents. Eliza T. Williams, Appellant; Lois Williams, an Infant, Respondent. Fourth Department, July 9, 1912. Husband and wife — foreign divorce with alimony—bankruptcy of husband—form of claim—New York judgment on foreign decree — effect of death of husband on alimony. A husband began an action for divorce in South Dakota. His wife joined issue in the action, which resulted in a decree granting her an absolute divorce and awarding her a certain sum “in full for all future alimony or allowance to the said defendant for her support during her life,” and in addition counsel fees, temporary alimony and costs. Subsequently the wife was awarded judgment in the Supreme Court of this State against her husband for the amount due her under the South Dakota decree, but execution thereon was returned unsatisfied. Thereafter the husband was adjudged a bankrupt upon his own petition, and the wife filed proof of her claim, based upon the South Dakota decree, but no dividends were paid. Later the husband, having contracted another marriage, died. The first wife presented to his executors a claim under the South Dakota decree, which was rejected. Thereupon she brought action to establish her claim and was defeated, the j udgment in her former action acting as a bar. ' Thereafter she presented a second claim, based upon her judgment recovered in this State, which was also rejected. Held, that the wife was entitled to have her claim allowed; that the judgment against the husband was not extinguished by his discharge in bankruptcy; That the surrogate was not justified in dismissing the claim because it was presented in the form of a claim upon the New York judgment alone. It seems, that so far as the alimony awarded was intended as a provision for the wife’s support after the death of her husband, it may not be enforeible. Kruse and Robsox. JJ., dissented. Appeal by Eliza T. Williams, claimant, from a decree of the Surrogate’s Court of the county of Monroe, entered in said -Surrogate’s Court on the 21th day of September, 1909, disallowing and rejecting her claim as a creditor against the estate of William Williams, deceased. The claim of appellant Eliza T. Williams which was disallowed by the surrogate, arises upon the following facts: She was formerly the wife of the deceased William Williams and they resided in the city of Rochester in this State. In 1892 Williams established or claimed to have established a residence in the State of South Dakota, and there began an action for divorce against his wife, Eliza T. Williams, in the Circuit Court of the seventh judicial district in that State. While this action was pending Mrs. Williams went to South Dakota, joined issue in the action, which resulted in a decree in her favor, granting her an absolute divorce from Williams and awarding her “in full for all future alimony or allowance to the said defendant for her support during her life,” the sum of $30,000, and in addition, by a separate order, $2,200 as counsel fees and temporary alimony, and $504.98' costs. This decree remains in full force. No part of the alimony, counsel fee or costs has ever been paid or collected. Williams thereupon returned and re-established his residence in Rochester, and subsequently Mrs. Williams began an action in the Supreme Court in this State against him in an effort to enforce payment of the alimony so awarded by said South Dakota decree. This action was defended by Williams, but resulted in a judgment in her favor on the 17th day of February, 1894, for $35,765.46, being the amount of said alimony and counsel fees and costs, with interest, Execution was issued upon this judgment, but noth- ■ ing was realized thereon. On August 28, 1899, Williams was adjudged a bankrupt upon his own petition in the District Court of the United States for the northern district of New York. His entire indebtedness, as stated in the schedules filed by him, consisted of the judgment recovered by Mrs. Williams on the 17th of February, 1894, in this State; and a debt of $500 to one Hoyt, as purchase price of certain shares of stock. The schedules stated that the consideration of the judgment in favor of Mrs. Williams was a judgment recovered in South Dakota for counsel fees and alimony in the action in that State for divorce, with interest added. Notice of the bankruptcy proceedings was given to Mrs. Williams, and she thereupon filed with the trustee a proof of claim based upon the South Dakota decree for the sum of $32,704.98, and the order for counsel fees and temporary alimony of $2,200, and in her proof of claim it was stated that it was filed only for the purpose of partaking' in any dividend to which she might he entitled, and that she claimed the debt was otherwise not provable and could not be affected by discharge of the bankrupt. On March 15, 1900, Williams was discharged by the bankruptcy court from all his debts provable in bankruptcy. No dividend was paid to his creditors. On September 14, 1904, Williams died, having contracted another marriage subsequent to the Dakota divorce, and leaving the second wife and the infant Lois, bom of the second marriage, him surviving. His will was probated and letters testamentary issued to the respondents Alice D.. Williams and William E. Peters as executors on the 4th day of November, 1904. On July 16, 1907, the claimant, Eliza T. Williams, presented to these executors a claim for $35,765.46, with interest from February 17, 1894, upon and by virtue of the judgment recovered by her against Williams on that day in this State. On the next day the executors served written notice upon the claimant rejecting the claim. The matter was heard upon the judicial accounting of the executors, and the claim of Mrs. Williams disallowed. James M. E. O’Grady, for the appellant. Hiram R. Wood, for the executors, respondents. Henry D. Shedd, special guardian for the respondent Lois Williams. [MAJORITY — Foote, J.:] Foote, J.: It appears from the decision of the surrogate that Mrs. Williams, the claimant, first presented to the executors a claim under the South Dakota decree; that the executors rejected this claim, and that thereupon Mrs. Williams brought her action in Supreme Court to establish the claim; this, we presume, upon the theory that it would be otherwise barred by the short Statute of Limitations. The executors pleaded in bar of this action the former judgment recovered by Mrs. Williams in this court in 1894 against their testator. This plea was held to be good, and in the opinion written upon the dismissal of the action it was said: “ The adjudication already made in this State as to the plaintiff’s rights under the Dakota decree is sufficient for the protection of the plaintiff and the establishment of her claim, notwithstanding the rejection of her claim by the executors, and such rejection does not put upon her the necessity of bringing a second action.” (Citing Matter of Lyman, 60 Hun, 82; McNulty v. Hurd, 72 N. Y. 518.) Thereafter the claimant prepared and presented to the executors a second claim based upon the judgment recovered in this State February 17, 1894, which the executors also rejected. The trial before the surrogate seems to have proceeded upon the theory that this second claim was the only claim before that court for consideration. The judgment roll in the South Dakota case and the judgment roll in the Hew York State action thereon were both in evidence before the surrogate,- and the surrogate has found the fact of the' recovery of the South Dakota judgment and that said judgment awarded to claimant against the testator $30,000 “in full for all future alimony or moneys to her for her support during her life;” together with $2,200 counsel fee and- temporary alimony, and $504.98, costs and disbursements. He has also found that the judgment recovered by claimant against testator in this State on February 17, 1894, “was an effort and endeavor upon her part to enforce the said judgment of the Circuit Court of South Dakota.” It was also found that the claim presented .by. claimant against the executors was a statement of the amount due claimant on the judgment recovered by her in this State, “ and which’judgment was the same judgment based upon the judgment for alimony of the Dakota courts.” But he refused to find that the South Dakota judgment “is still a judgment of record in that State and is in full force and effect as a judgment of the Circuit Court of the State of South Dakota.” He does find that execution was issued upon.the Hew York judgment and returned unsatisfied, and that nothing has been paid upon that judgment. There is no proof that the South Dakota judgment is not in full force. A brief quotation from the opinion of the learned surrogate will indicate sufficiently the ground upon which he has disallowed the claim: “What is the standing of the judgment presented before us ? It is not an action for alimony. The divorce was obtained in South Dakota, upon which was based the right to an action in alimony. That right to alimony was not, ab initio, suable in the State of Hew York. It was simply incidental to the divorce action in South Dakota, and when reduced to a judgment in the State of South Dakota it became a judgment which, as such, could be the basis of a judgment in the State of Hew York, not for alimony, but for the money due on said' judgment, as adjudicated by the court of South Dakota.” The learned surrogate then proceeds to hold that this Hew York judgment was simply a money judgment, and as such it was released or extinguished by the discharge in bankruptcy. The only authorities, cited for this conclusion are section 63 of the Bankruptcy Law (30 U. S. Stat. at Large, 562); Lynde v. Lynde (162 N. Y. 417) and Arrington v. Arrington (10 Am. Bankr. Rep. 103), decided by the Supreme Court of North Carolina. We think the claimant was entitled to have her claim allowed. We need not consider the legal effect of the discharge in bankruptcy upon the Hew York judgment. Ho doubt the proof of claim should have consisted of a duly authenticated copy of the judgment record from South Dakota, together with a certified copy of the judgment roll in the Hew York action. These judgments constituted the basis of her claim, showing it to be a claim for alimony adjudged in her favor by the South Dakota court and adjudicated to be such in this State. Such a claim is not affected by a discharge in bankruptcy, although it arose prior to the amendment of the Bankruptcy Act in 1903, which expressly so provided. (See 30 U. S. Stat. at Large, 550, § 11, as amd. by 32 id. 198, § 5.) This has been held by the Supreme Court of the United States in Audubon v. Shufeldt (181 U. S. 515) and Wetmore v. Mar-koe (196 id. 68). And in the latter case it was held that the amendment of 1903 is not a legislative recognition that prior thereto judgments for alimony would be discharged, but in view of the decision in the Audubon case the amendment should be held as merely declaratory of the true intent and meaning of the statute as it existed before that time. We think the surrogate was not justified in dismissing the claim on account of the form in which it was presented as, a claim upon the New York judgment alone. The matter came up upon an intermediate accounting. The estate had not been distributed, and the proofs before the surrogate showed that the claim rested primarily upon the South Dakota judgment, while the New York judgment was conclusive evidence, so far as the Surrogate’s Court was concerned, of the existence and validity of the South Dakota judgment. The judgment roll of the South Dakota judgment being in evidence, the surrogate was fully advised thereby, as well as by the judgment roll in the New York action, that the plaintiff’s claim was one for alimony and support due from her husband; hence, we think the claim should have been treated as one under the South Dakota judgment, proved, so far as necessary, by the New York judgment. But the award of alimony was in the form of a gross sum for the' life of the wife. Williams’ liability for her support ceased with his death in 1904. (Beach v. Beach, 29 Hun, 181.) And so far as the alimony awarded was intended as a provision for her support subsequent to that time, it may be that it is not enforcible. We have not before us the South Dakota statutes, and are not familiar with the practice of awarding alimony in a gross sum. But the question is not a practical one in this case, for the reason that the total amount of the Williams estate for distribution is so small that the amount payable to the claimant, in case her claim is allowed, will apparently not exceed the pro rata share of the alimony awarded to her by the South Dakota decree for the time which elapsed before Mr. Williams’ death. The decree of the surrogate, so far as appealed from, should be reversed; with costs to the appellant payable. out of the estate, and a new trial ordered in the Surrogate’s Court of Monroe county. All concurred, except Kruse and Bobsor, JJ., who dissented. Decree of Surrogate’s Court reversed and new trial granted in Surrogate’s Court, with costs to appellant payable out of the estate.