Marriage and Divorce, Alimony. Probate Court, Jurisdiction.
Upon a libel by a wife for a divorce, the Probate Court has jurisdiction to enter a decree as to alimony, assented to by the parties, which provides that payment to the libellant for the support of herself and two children shall continue beyond the life of the libellee and shall be made from his estate "as a charge thereon until further order of" the court; and requires the libellee to keep his life insured by insurance payable on his death to the libellant, "but in trust nevertheless to invest the same and to apply the income thereof to the payment of any allowances that may be due to the libellant hereunder and, in case the estate of the libellee is insufficient to pay such allowances, to use such part of the principal of said trust fund as, in the discretion of the libellant, is necessary for her own suitable support and that of her children, but not more than the overdue allowances."
CARROLL, J.
This is a petition, dated February 3, 1927, by the libellee in a divorce proceeding in the Probate Court, to vacate a decree of divorce with alimony granted to his wife on June 15, 1925. It is alleged in the petition that the court had no jurisdiction to make the decree awarding alimony, because it ordered the payment of alimony to continue after the decease of the libellee, because it was not limited to the amounts due at his decease, and because it required him to keep his life insured as security for the payment of alimony after his death.
The libellant and libellee agreed in writing that the sums stated should be paid on the designated dates by the husband to the wife; that in the event of his death before February 1, 1926, the amounts as stated should be paid from his estate; and if he died after February 1, 1926, the amounts agreed on should be paid from his estate on the first day of each month. As security he agreed to keep his life insured in the sum of $25,000, payable to his wife, but in trust as set out in the agreement for her support and the support of their children. In the Probate Court a decree nisi was granted, for the cause of cruel and abusive treatment on the part of the libellee, to become absolute after the expiration of six months; custody of the two minor children was given to the libellant, and the libellee was directed to make payments substantially as agreed to by the parties.
There are a number of decisions holding that liability for alimony ceases with the death of the libellee. Stone v. Duffy, 219 Mass. 178, 182. Knapp v. Knapp, 134 Mass. 353, 355. These cases however merely decided that payments were not to extend beyond the life of the libellee when the decree was silent on the subject. Stratton v. Stratton, 77 Maine, 373, 380, and cases cited. See in this connection Brown v. Brown, 222 Mass. 415, 416, 417, and 19 C.J. 278, 279.
The court had jurisdiction of the subject matter. G.L.c. 208, § 34. St. 1922, c. 532, § 6. It had jurisdiction of the parties and they agreed upon the amount and extent of alimony. The court could in these circumstances decree that the alimony should extend beyond the lifetime of the libellee. The authorities in other jurisdictions support this contention. Stratton v. Stratton, supra. O'Hagan v. O'Hagan, 4 Iowa, 509. Burr v. Burr, 10 Paige, 20; affirmed 7 Hill, 207. Storey v. Storey, 125 Ill. 608. Stone v. Bayley, 75 Wn. 184; 48 L.R.A. (N.S.) 429. We know of no reason which prohibited the Probate Court from entering such a decree and securing its performance by directing the libellee to keep his life insured. G.L.c. 208, § 36. See Stone v. Bayley, supra. The decree dismissing the petition is affirmed.
Ordered accordingly.