Seibly v. Person

Montgomery, J.

Elñna A. Adams, in May, 1887, filed a bill of complaint against Edward J. Adams, her husband, in the circuit court for the county of Ingham, praying a divorce from the bonds of matrimony. A subpoena was issued in the usual form, containing an underwriting, signed by the solicitor, which read:

“A personal decree is sought against the defendant for divorce, and the bill is filed to reach interests in property, and not to obtain any further relief against the ■remainder of the defendants.”

The case proceeded, and on the 29th of January, 1889, a decree of divorce absolute was granted, which contained the following clause:

“It is further ordered that the consideration of the question of alimony be, and the same is hereby, reserved for further order and decree herein.”

*586No further steps were taken by either party to the case until the death of Edward J. Adams, which occurred on the 15th day of September, 1894. Edward J. Adams died testate, and Fred M. Seibly was appointed administrator of his estate with the will annexed. An order was made on the 23d of October, 1894, by the respondent, on the petition of Elfina A. Adams, asking that she be allowed alimony out of the estate of her deceased, husband, requiring the relator to answer the petition. The relator subsequently moved for a vacation of this order, which motion was denied, and he now asks a writ of mandamus, requiring respondent to vacate the order refusing relator’s motion, and requiring the vacation of the first order made by the circuit judge.

It is undoubtedly a general rule that the death of either party to' a divorce suit pendente lite abates the suit, and it is also the general rule that a proceeding to enforce •alimony, at the common- law, abates on the death of either party. The reason of the rule is, in the first instance, that the purpose for which the proceeding is pending — namely, the' dissolution' of marriage — is accomplished, and, in the second instance, that, common-law alimony consisting, as it does, of provision for the support of the wife, on a divorce, a mensa et thoro, by means of an allowance to be paid by the husband, the proceeding relates to conditions which exist only during the life of the two. But under our statute (How. Stat. §§ .6245, 6247) the court may decree suitable alimony, and it may award a sum in gross, which becomes presently payable, or the court may sequester the real and personal estate, and appoint a receiver thereof, and cause the personal estate and the rents and profits of the real estate to be applied to the payment of the alimony. It is proper practice for the court to determine in the first instance the right to decree, and to reserve the question of alimony for subsequent adjudication. See Rea v. Rea, 53 Mich. 40. That was attempted to be done in this case, and, if it results that the death of the husband ousts the court of juris*587diction to award permanent alimony, it follows that, in every casé where a decree is entered in the form here employed-there must be a period of greater or less duration during which the wife is at the-risk of-losing thé interest in her husband’s estate Which she would have under the statute of distributions but for the divorce, and without opportunity afforded her by the court to have awarded her a proper allowance of alimony. This result would be manifestly unjust. That the right to award alimony may be reserved by the court in its decree, see Stew. Mar. & Div. § 876. See, also, Miller v. Clark, 23 Ind. 370.

It is also contended that Mrs. Adams was guilty of laches in prosecuting her claim. But the delay was excused by the petition, and we think that question should be determined in the reasonable discretion of the circuit judge.

It is further urged that neither the bill nor the subpoena indicated an intention to claim alimony. But we think the underwriting in the subpoena was sufficient to indicate that property interests were involved, and that this might include an allowance of alimony out of the property of defendant.

The failure to allege the faculties of defendant in the bill does not preclude the remedy; and, the decree providing, as it does, that the question should be reserved for determination in that proceeding, and the defendant not having appealed from the decree, we think the omission is not fatal, and that a subsequent proceeding upon the foot of the decree is admissible. 1 Amer. & Eng. Enc. Law, 478; Stew. Mar. & Div. § 367.

In one respect, however, we think that the order was erroneous. -Neither the heirs at law nor legatees named in the will were made parties to the proceeding, which we think was necessary. See Shafer v. Shafer, 30 Mich. 163.

The order should be vacated, but without prejudice -te»; the right of complainant to proceed to file a petition *588bringing in the proper parties; and, under the circumstances of the case, this order will be without costs.

McGrath, O. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.