Abbildungen der Seite

In Vandergucht v. De Blaquiere (838), 8 Sim. 315, 7 L. J. Ch. 270, 2 Jur. 738, it appeared to the vice-chancellor that a married woman, living separate from her husband, after a decree of 755 divorce a mensa et thoro, and entitled to alimony under the sentence of the ecclesiastical court, had undertaken to charge future installments for payment of necessaries purchased by her. Vice-Chancellor Shadwell said: "Alimony materially differs from separate property. It is liable to be varied by the ecclesiastical court according to the husband's circumstances; whereas, separate property always remains the same, whatever alteration may take place in the circumstances of the husband." Upon this ground he refused to enforce the charge. Afterward, however, additional proofs having been submitted, Lord Chancellor Cottenham varied the vice-chancellor's order with respect to a portion of the fund that had been subjected to the charge, on the ground that this portion appeared not to be the fruits of aliniony, leaving untouched the title to the alimony: Vandergucht v. De Blaquiere, 5 Mylne & C. 229, 244, 3 Jur. 1116. It should be remarked that the circumstance of the wife's disability to contract, by reason of the coverture, was not alluded to in the case, and indeed is of no consequence. In equity, and also in the ecclesiastical law, a married woman was permitted to charge her separate estate; and so the real question in the case was whether alimony was separate property such as could be charged.

In re Robinson (1884), 27 Ch. Div. 160: In this case it appeared that the divorce court had made a decree for a judicial separation between the parties and had ordered the husband to pay permanent alimony to the wife in monthly payments. Afterward the husband was declared a lunatic, and, in the lunacy matter, an order was made for the payment out of his estate of an annuity to the wife, until further order, equivalent to the alimony theretofore decreed by the divorce court. After the making of this order the wife assigned the annuity to a third Jarty, and the assignee applied by petition to have the annuity paid to him. It was held by the court of appeal that the petition must be refused, on the ground that whether the annuity was considered as alimony or as an allowance made to the wife by the court in lunacy, it was in either case not assignable. In the reasoning of the lords justices, the decision was based on the ground that the annual recurring payments (whether considered 756 strictly as alimony or not) were for the personal benefit of the wife, and were in their nature inalienable; that such

future payments were not in the nature of property, but were payments made to the wife for her maintenance, of which she could not deprive herself by anticipation.

Harrison v. Harrison (1888), 13 Prob. Div. 180: In this case a decree for dissolution of marriage had been made on the wife's petition, with an order requiring her husband to secure to her an annuity for life. It was held in the court of appeal that such an annuity, under the terms of the statute, differed from ali. mony in that it was not capable of being withdrawn. The annuity was therefore held to be property, such as might be subjected to a charge for the benefit of the solicitors who had recorered it, but the court of appeal refused, in the exercise of its discretion, to make the order under the circumstances of the


In Watkins v. Watkins (1896), Prob. Div. 222, it was held by the court of appeal that sums of money ordered to be paid by the husband for the maintenance of his divorced wife, after a divorce vinculo, under authority of a statute which permitted the court to reduce the allowance fixed or discharge the order for maintenance, but not to increase the allowance, were so far analogous to the alimony of the ecclesiastical law that they should be treated as a purely personal allowance which could reither be alienated nor released so long as the order subsists. In the judgments delivered by the lords justices, no doubt was entertained that permanent alimony, which is under the control of the court, and can be either increased, decreased, or suspended at the discretion of the court, is, in its essence, inalienable.

In Linton v. Linton (1885), 15 Q. B. Div. 239, 54 L. J. Q. B. 529, 33 Week. Rep. 714,2 Morr. 179, 49 J. P. 597, it was held in the court of appeal that future payments of alimony were not capable of being valued, and were not a "debt or liability” within the meaning of the bankruptcy act, and so could not be proven in the bankruptcy of the husband; and that, notwithstanding his bankruptcy, he was still liable to pay the alimony.

In re Hawkins (1894), 1 Q. B. 25, 10 R. 29, 69 L. T. 769, 42 Weck. Rep. 202, 1 Mans. B. R. 6: It was held by the queen's bench 757 division that arrears of alimony which accrued after the date of a receiving order in bankruptcy, and before proof, were not provable in bankruptcy; and it was held by Vaughan Williams, J., that such arrears would not be provable whether they accrued before or after the date of the receiving order.

In Kerr v. Kerr (1897), 2 Q. B. 439, 66 L. J. Q. B. 838, 77 L. T. 29, 46 Week. Rep. 46, 4 Mans. 207, it was held that arrears.

of alimony, which accrue before the making of a receiving order in bankruptcy against the husband, are not provable by the wife in bankruptcy. In this case, Vaughan Williams, J., said: “The practice of the divorce division so much treats the sums periodically payable under its order as a fund for maintenance and not as property, and so much keeps its hand on the obligation to make these periodical payments for maintenance, that it is a searching rule that the court will not, in the absence of special circumstances, make an order enforcing more than one year's arrears."

Not only does it follow, from the very nature of alimony, that it cannot be subjected in advance to a charge in favor of the solicitor through whose services it is awarded, but a like result follows from the plainest principles of public policy. According to the familiar practice of the court of chancery, the taxed costs and reasonable counsel fees of the wife are awarded against her husband. Westcott v. Hinckley, 46 N. J. L. 343, 29 Atl. 154, is an authority to the effect that there exists no legal liability upon the husband to pay such costs and counsel fees, and that they rest exclusively in the discretion of the chancellor. Applications for such allowances, as well as for alimony, peculiarly call for good faith and candor on the part of the applicant. It is a fraud on the court, and also upon the husband, for such an application to be based upon the supposed necessities of the wife, when in truth she has bartered away in advance a share of that which she is to receive. The present case furnishes a forcible illustration of the consequences that would flow from countenancing bargains made between the wife and her solicitor, with the design of appealing to the discretion of the chancellor for an allowance under the name of alimony, when in truth, perhaps, one-third or one-half of the entire amount (as in this case) is to be appropriated not to the 758 needs of the wife, but to the use of the solicitor. The chancellor here allowed a large sum for alimony, accrued between the date of the application and the final adjudication; he also allowed the usual taxed costs, and a counsel fee of one thousand dollars. Can it be supposed that he would have allowed this counsel fee had he known that onethird at least of the accrued alimony was to be diverted to the payment of "legal expenses?" Or, rather, would he not have "taken order” (to use the words of the statute) so as to insure that the alimony allowed should be devoted strictly to the purpose for which it was intended ?

A case quite in point with the one now before us was that of Jordan v. Westerman (1886), 62 Mich, 170, 4 Am. St. Rep. 836, 28 N. W. 826. There was a contract made between solicitors and client at the time the former were employed, whereby the client agreed that the solicitors should have one-half of whatever temporary or permanent alimony the court should require the de fendant to pay, was held void. This decision is particularly apt as authority, because the statute law of Michigan respecting allowance of alimony pendente lite, and of permanent alimony as incidental to divorce, does not differ in any feature, essential to the present inquiry, from the law and practice governing alimony in this state. The contract was objected to on three grounds, viz.: (a) that the plaintiff as a married woman was incapable of making a contract; (b) that the subject matter was not capable of being assigned; (c) that the contract was void as against public policy. The court passed by the first of these without argument, and sustained both the other grounds of objection. The reasoning of the opinion is very able and instructive.

As we have reached the conclusion that Mr. Westervelt is not entitled to impose a lien upon the fund in question for the amount of his claim, it becomes unnecessary to consider those allegations of Mrs. Lynde's petition which relate to the power of attorney. For, whether he acquired possession of the fund fairly or not, in either case he is not entitled to retain possession of it for the purpose of enforcing his claim. It is not doubted that he has rendered services of much value to Mrs. Lynde. For these he should be paid a reasonable sum. He claims to have paid $4,900 to Mr. Bruce and Messrs. Gayley & Fleming, the 758 counsel who were concerned in the litigation. It should be stated that the case shows no ground for any criticism upon these gentlemen, and none is intimated. But, so far as appears, the amount of their fees was fixed without the approval of Mrs. Lynde being either given or asked. Moreover, she denies having authorized their employment at her expense. Supposing Westervelt has paid them the $1,900, as he claims, it remains to be determined, as between him and Mrs. Lynde, whether these fees are chargeable against her, and, if so, whether they are reasonable. Any sum she is chargeable with on that account should be taken into consideration in fixing the amount to be allowed to Westervelt for his services. In his affidavit he claims to have paid a large sum of money out of the fund in question to Mr. Ball, the New York lawyer, who introduced him to Mrs. Lynde.

This payment, if made, appears to have been entirely without warrant, and is not to be credited to Mr. Westervelt as a disbursement. The bill of $2,513.21 will, of course, be the subject of inquiry. It was said upon the argument that Mrs. Lynde had, with Westervelt's consent, drawn the money upon the check for $16,086.79, after erasing the words "in full,” etc. If this is true, that amount will, of course, be credited to him.

The order appealed from should be reversed and a new order directed to be made requiring the respondent, James Westervelt, to pay

forthwith into the hands of the clerk in chancery, or to such other custodian as the court of chancery may designate, the entire sum of $38,500 above referred to, after deducting the amount of counsel fees actually paid by him to Mr. Bruce and to Messrs. Gayley & Fleming (not exceeding, in the aggregate, $4,900), and deducting an amount not exceeding $2,513.21 for other disbursements and taxed costs paid by Westervelt from the fund of $38,500, or chargeable thereon, and after deducting also the amount of the $16,086.79 check sent by him to Mrs. Lynde, if it appears that she has collected the money thereon. Upon the payment being made into court, the court of chancery should then proceed, in a summary way, to ascertain and determine what is reasonable compensation for Mr. Westervelt's professional services rendered in Mrs. Lynde's behalf in the litigation above referred to, and also to inquire into the reasonableness of the fees 760 paid to Mr. Bruce and Messrs. Gayley & Fleming, and whether these are properly chargeable to Mrs. Lynde; and also to inquire into the bill of $2,513.21. From any amount found due to Mr. Westervelt there should be deducted the costs of the proceedings, including the costs of this appeal, and also such part, if any, of the $4,900 and $2,513.21 as the court may find to be properly chargeable against his compensation, or not properly chargeable to Mrs. Lynde; the balance, if any, of his compensation to be paid to him, and the residue of the fund to go to Mrs. Lynde. If, upon taking the account, the balance appears to be against Mr. Westervelt, he should, of course, be required to pay it.

Let the order appealed from be reversed, and the cause remitted to the court of chancery, to be there proceeded with in accordance with the views above expressed.

Alimony is an allowance for support and maintenance: Romaine v. Chauncey, 29 N. Y. 566, 26 Am. St. Rep. 544, 29 N. E. 826; Adams v. Storey, 135 Ill. 448, 25 Am. St. Rep. 392, 26 N. E. 582. See the monographic note to Metbvin v. Methvin, 60 Am. Dec. 665-682, on

« ZurückWeiter »