In re the Judicial Settlement of the Accounts of Williams

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 [388] 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 [389] 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. [390] 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.