Rollins v. Gould

De Courcy, J. Frank L. Gould, the plaintiffs intestate, died July 11, 1920, leaving as his widow the defendant Mary J. Gould, and as his next of kin certain brothers and sisters, represented by the other defendants. He had brought a libél for divorce against his wife, said Mary J. Gould, in October, 1919, on the grounds of desertion. On March 17, 1920, a decree nisi was entered in his favor; and also a decree assented to by the parties, ordering him [272] to pay forthwith to the libellee “the sum of $1,500 in full of all alimony, allowances and claims and demands in law or in equity by libellee against the libellant.” An agreement dated March 18, 1920, made by the parties and a third person as trustee, recited the pendency of the libel, the wife’s petition for alimony, and her claim for $1,000 advanced by her, in 1911, for which she held his note. Therein he promised to deliver to the third party said sum. . of $1,500; and she agreed to surrender the note, and after the decree nisi should have become absolute, to give a “release and discharge of all claims that she may have for alimony and all other claims, in law or in equity, which she may have against ” him. The money was thereupon paid, and the promissory note surrendered. Within four months after the entry of the decree nisi, and hence before it could have become final, Frank L. Gould died, intestate, and a suggestion of his death was duly filed in the divorce case. The plaintiff, administrator of his estate, is ready to make a partial, distribution of the money in his hands, and brought this bill in equity in the Probate Court praying for instructions as to whom and in what proportions he should make payments. The decree nisi did not terminate the relation of husband and wife between the parties to the libel. Unless and until the case should be finally disposed of by the entry of a decree absolute, Mary J. Gould continued to be the legal wife of Frank L. Gould;, and upon his death, intestate, she was entitled to the share in his estate provided by the statute then in force. Chase v. Webster, 168 Mass. 228. Koffman v. Koffman, 193 Mass. 593. R. L. c. 152, § 18. The provisions of § 24 of that statute are expressly limited to “dower in the land of her husband,” and are not applicable here. If a wife is to be deprived of her statutory interest in her husband’s estate after the entry of a decree nisi in a libel brought by him, the Legislature must enact a statute to that effect. The decree for alimony, and the agreement of March 18 did not bar the wife’s statutory right in her husband’s estate. The general purpose of alimony, whether temporary or permanent, is to enforce the legal duty of a husband to provide for the support of his wife. Brown v. Brown, 222 Mass. 415. G. L. c. 208, § 34. The statutes dealing with the subject aré distinct and separate from those pertaining to the rights of a surviving husband or wife in the estate of the other. Neither the decree, nor the agreement [273] of March 18 contained any reference to the wife’s rights upon the death of the husband. The stated purpose of the agreement was to settle the question of alimony, and the note for $1,000 and interest: on which note the wife had a moral if not an enforceable legal claim. Mrs. Gould has not barred herself by waiver, estoppel or election, from claiming her statutory interest in her husband’s estate. The Probate Court ordered the plaintiff to distribute the property in accordance with the statute in force at the death of Frank L. Gould; to wit, $5,000 and one half the residue to said Mary J. Gould and the balance among the defendants or their legal representatives. This was correct. The decree also ordered her to return to the administrator the $1,500 paid to her under said agreement of March 18. She now asks us to modify the decree by striking out this last provision. But as she did not appeal from the decree, the right of the court to order this repayment is not before us for consideration. See Sherburne v. Howland, 239 Mass. 439, 441. The decree is affirmed, and the case is remanded to the Probate Court for further proceedings. The allowance of counsel fees in connection with the appeal is to be determined by that court. Ordered accordingly.