O'Hagan v. of O'Hagan

Weight, C. J.[1] This bill was filed under section 1485 of tbe Code, wbicb gives to tbe court decreeing a divorce, tbe power to make such order in relation to tbe children and property of tbe parties, and tbe maintenance of tbe wife, as shall be right and proper, and wbicb also provides, that “ subsequent changes may be made by tbe court in these respects, when circumstances render them expedient.” Does a proceeding asking such change, os modification, abate by tbe death of tbe husband ? is tbe only question presented for our determination. We clearly think it does. What is alimony, and what its original obj ect and purpose ? As stated in Jolly v. Jolly, 1 Iowa, 9, it is the nourishment — the maintenance— tbe allowance made for tbe support of tbe wife, which is givep and fixed by tbe proper court, out of tbe husband’s estate, when they are legally separated. So in Bishop on M. & Div. § 549, it is said to be the allowance wbicb .a husband pays by order of court to bis wife, who is living separate from him, for her maintenance. And in Wallingsford v. Wallingsford, 6 Har. & J. 485, it is stated to be, not a portion of bis real estate to be assigned to her in fee sim [516] pie, subject to her control, or to be sold at her pleasure, but a provision for her support, to -continue during their joint lives, or so long as they live separate. As a separate, independent right; it has no common-law existence, but is always appurtenant or incident to some proceeding for some other purpose. So also, being a provision for her support during separation only, and looking to a possible reconciliation, and recohabitation of the parties, it is manifest that it originally was authorized only in cases of divorce a mensa, and not in those which dissolved the marriage, or the matrimonial bond. In this country, however, the statutes of the different states generally, authorize that where a divorce of either kind is granted, there may also be a decree for alimony, or some equitable and fair division of the property. In making such decree, our courts are not, in many of the states, confined to giving to the wife sums of money, payable at regular periods; nor to giving her money merely; but may give her absolutely a specific portion of his estate or property, whether real or personal. And in decreeing her sums of money, in the first instance, or in making the proper and equitable order in relation to their property, and her maintenance, the decree may provide for the payment thereof from year to year, for a specified period, or may provide even that it shall continue during her life. And thus, we see, that alimony as originally understood and decreed in the English courts, and the class of cases in which it was given, has been greatly changed and modified by the statutes of the different states, and the decisions of our courts. Barr v. Barr, 7 Hill, 209; Richardson v. Richardson, 8 Yerger, 67; Fischli v. Fischli, 1 Blackf. 860; Reavis v. Reavis, 1 Scam. 242 ; Bishop on M. & D. 591, 592. ■ But notwithstanding all these modifications, we do not understand that any court has yet held, that the wife, after the death of the husband, may ask an allowance of this character. Nor is there any case to be found in the books, as we believe, recognizing the right of the wife to prosecute her suit for alimony, commenced in the husband’s lifetime, after his decease. Where the bill is for a divorce, and ali [517] mony as appurtenant or incident thereto, the death of the husband, of necessity, abates so much of the bill as seeks the divorce, and as necessarily, as we think, that portion which seeks alimony — if for no other reason, because'a bill for alimony alone, is unknown to the common law, and is certainly not allowed in this state. And as an original suit for divorce and alimony, would abate by the death of the husband, for the same reasons would a proceeding to modify or change a former decree in relation to the wife’s support, abate. Are we asked why the wife may not apply to the courts for alimony, or for the modification of a former decree in respect to the same, after the husband’s death; or may not prosecute a suit already pending against his administrator ? we answer, because upon his death, if his widow, she is entitled to dower, to be set apart to her in the method provided by law — and any pending claim for alimony is necessarily, and legally merged and swallowed up in such dower right. If not his widow, nor entitled to dower, we do not know upon what ground she would be entitled to alimony. The allowance of alimony must be made from a living husband, to a living wife, and upon the death of either party, the courts possess no further power, in respect to such allowance. But it is said that a decree may be made giving to the wife an annual or other allowance during her life, which may extend, and be enforced against his estate beyond the life of the husband; and if s®, a court may also modify a former decree, either in favor of or against the husband, after his death. The answer to this is, that in such a case, the court has acted upon the whole question, during their joint lives, and has decreed to her a definite and fixed sum. This decree has the same force and validity as any other judgment, and may be collected in the same manner. It is a fixed, ascertained, and subsisting debt against him, and upon his death, against his estate. Not so, however, with a claim for alimony which never has been settled; or where the wife, after his death, seeks to increase the amount allowed in his lifetime. It is not a demand, definite in its [518] character, to which she has an absolute right. By the decree giving her an absolute sum during her life, she stands as any other creditor, and. her right to payment does not depend upon the amount of his estate; whereas the ability of the husband, and their condition in life, are important to be considered in awarding alimony, or in changing a dower for the same. The case of Gaines v. Gaines, 9 B. Monroe, 295, expressly decides that the claim to alimony, as such, ceases at the death of the husband, and the petition of the wife therefor, was refused, though pending at his decease— the court saying, “ we are of opinion that such claim, though asserted before his death, will ceáse by that event, and cannot be afterwards availably asserted, unless it has beenbefore1 ascertained and fixed by decree.” And to the same effect, see Bishop on M. & D. § 559. The case of Jolly v. Jolly, 1 Iowa, 9, referred to* by appellant, decides only,, that under the Code, in. applications- for a- divorce and alimony, the court may give to the wife a certain portion of the husband’s lands in fee simple. But it is claimed, that this case comes within section 1698 of the Code, which- provides that actions do not abate, by the death of either party, if from the nature of the case, the cause of action can survive. Much that we have before' said, is applicable to the argument • attempted to be drawn from this section.. It might admit of a doubt, whether a proceeding of this character is an action within the meaning of this provision. But however this may be, we think that whether the action or proceeding has been commenced or not, the remedy of the party is gone, or must abate, unless the cause of action is of such a nature that it can survive.. What are such causes of action, we determine from the common law and our own statutes. But what court ever held, or what, provision of our law contemplates, that after1 the death of the husband, the wife may, by suit, claim alimony from his. estate? If such an action or proceeding should be commenced after his death, no person, perhaps; would claim that, it could be maintained. So, if instead of by an original action claiming alimony, she should, after his! [519] death., file her bill to modify a former decree, we apprehend that it would meet but with little, if any, favor. And why ? "We answer, because from the very nature of the relief sought — from the character of the relation out of which the claim originates — from the nature of the cause of action, as recognized by the uniform adjudications of this country and England — the judicial mind resists the proposition to decree the wife alimony, or- change that before allowed her, after the husband’s death, as being inconsistent and incompatible with her new position, and the rights of the heirs and others interested in the estate. And, in like manner, and from the same considerations, it' would seem that the fact that she filed her bill asking such modification before his death, could not change the nature of the cause of action' — nor make more complete her right to the relief prayed for. Decree affirmed. Footnotes [[1]] Stockton, X, dissenting.