Braffett v. Braffett

14 N.W.2d 129, 308 Mich. 506, 1944 Mich. LEXIS 260

• Court: Michigan Supreme Court
• Decided: April 4, 1944
• Docket: Docket No. 92, Calendar No. 42,628.
• Status: Published

Opinions

Sharpe, J.

Grace K. Braffett and John W. Braffett were divorced in November, 1934. The decree of divorce provided:

“It appearing that the said defendant, John W. Braffett, has heretofore released and conveyed nnto the said plaintiff, Grace K. Braffett, all his right, title, and interest in and to the real estate formerly occupied by the said parties, and hereinafter described; and has agreed to pay to the said plaintiff the sum of $125 per month for and during the natural life of the said plaintiff as permanent ialimony; and

“It appearing that the said settlement is a fair and equitable one: * * *

“It is further ordered, adjudged and decreed that ' the said defendant, John W. Braffett, shall pay to the said plaintiff, Grace K. Braffett, the sum of $125 per month beginning the 1st day of December, A.D. 1934, and each and every month thereafter during the natural life of the said plaintiff unless the plaintiff shall remarry, and in the event of her remarriage the said payments shall terminate; said payments to be made through the clerk of the court, county of Oakland, State of Michigan, or as the parties may hereafter agree. ’ ’

John W. Braffett remarried and died testate on . the 11th day of June, 1942. At the time of his death he was in arrears for alimony in the sum of $1,350. No proceedings were taken during the lifetime of John ~W. Braffett to have the decree modified, nor has Grace K. Braffett remarried.

Subsequent to the death of John W. Braffett, Grace K. Braffett, claimant herein, filed her claim in the probate court against the estate of John W. Braffett for alimony due and unpaid prior to the death of the deceased in the amount of $1,350 and for alimony for and during her natural life in the amount of $28,183 which contingent claim is based upon a contribution of $125 a month for claimant’s life expectancy of 18.79 years.

The probate court allowed the claim of $1,350 as a liquidated claim against the estate and entered the following order:

‘ ‘ That the claimant has a contingent claim against this estate for alimony subsequent to the date of death of the testator, the amount of which is to be determined solely by the circuit court in chancery which retains jurisdiction, and

“In view of the fact that the circuit court may allow the alimony order to continue for an unascertained time this court, in order to protect such contingent claim under chapter 8, §§25, 27, of the probate code (Act No. 288, Pub. Acts 1939) , orders the estate to be held open and sufficient funds retained in it to safeguard the future payments to be made, based on the present alimony rate and the total life expectancy of the claimant according to the mortality tables.”

The cause was appealed to the circuit court and the trial judge affirmed the order of the probate court. Claimant appeals and urges that the divorce decree was a consent decree; that the property settlement of the parties was embodied in the decree; that she has an absolute right to a judgment in the circuit court directing the estate to pay her such sum for the rest of her life or until she remarries; and that the probate court has sole jurisdiction of the claims against the’ estate of John W. Braffett.

At common law, proceedings to enforce alimony abate on the death of either party. The authority to award alimony depends upon statutory law.

In Seibly v. Ingham Circuit Judge, 105 Mich. 584, we held that the death of the husband does not oust the court of jurisdiction to award permanent alimony. This holding was based on How. Stat. §§ 6245, 6247.

In Creyts v. Creyts, 143 Mich. 375 (114 Am. St. Rep. 656), we held that a provision in a decree of divorce against a husband for the. payment of a certain sum monthly, until the further order of the court, for the support of an infant child is not discharged by the death of the husband. The law in effect at this time was 3 Comp. Laws 1897, §§ 8640, 8641.

In Maslen v. Anderson, 163 Mich. 477, a decree of divorce was granted the wife and alimony was given to her payable monthly as long as she should live and remain unmarried. Later Mr. Anderson died and the executor of his estate attacked the divorce decree in the chancery court. We there said: “We are satisfied with the decree of the court below, in so far as it deals with the subject of alimony to be paid to Louisa A. Anderson (wife).”

In Pingree v. Pingree, 170 Mich. 36, we held that by virtue of 3 Comp. Laws 1897, §§ 8638, 8640, 8641, an equity court has jurisdiction to modify a decree of divorce awarding alimony payable in instalments, after the death of the defendant husband, so as to grant a gross sum out of the estate of the deceased in lieu thereof.

It is to be noted that the statutes above referred to still exist and, with the exception of How. Stat. .§ 6247, have not been modified since the decision in the Seibly Case, supra. They are a part of the general laws relating to divorce. 3 Comp. Laws 1929, § 12745 (Stat. Ann. § 25.103), which was How. Stat. § 6245, 3 Comp. Laws 1897, § 8638; 3 Comp. Laws 1929, § 12747 (Stat. Ann. § 25.105), which was How. Stat. § 6247, as amended by Act No. 197, Pub. Acts 1897, being 3 Comp. Laws 1897, § 8640; and 3 Comp. Laws 1929, § 12718 (Stat. Ann. § 25.106), which was How. Stat. § 6248, 3 Comp. Laws 1897, § 8641.

In 1909, Act No. 259, Pub. Acts 1909 (3 Comp. Laws 1929, § 12766 [Stat. Ann. §25.131]), was enacted. This act reads as follows:

“Section 1. When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest. ’ ’

Prior to this act, a divorced wife was entitled to alimony payments from the estate of her deceased former husband. The question now before us is: Does the above act repeal by implication 3 Comp. Laws 1929, §§ 12715, 12717 and 12718?

In Lenawee County Gas & Electric Co. v. City of Adrian, 209 Mich. 52, 64 (10 A. L. R. 1328), we said:

“Laws are assumed to be enacted by the legislative body with some knowledge of and regard to existing laws upon the same subject and decisions by the court of last resort in reference to them.”

In People v. Buckley, 302 Mich. 12, 22, we said:

“The question of repeal must be considered with the following rules of statutory construction in mind: The law does not favor repeals by implication, In re Opening of Gallagher Avenue, 300 Mich. 309; Sambor v. Home Owners’ Loan Corp., 283 Mich. 529; In re Reynolds’ Estate, 274 Mich. 354; Club Holding Co. v. Flint Citizens Loan & Investment Co., 272 Mich. 66. There is no presumption of repeal by implication, In re Opening of Gallagher Avenue, supra; City of Detroit v. Weil, 180 Mich. 593; In re Bushey, 105 Mich. 64; People v. Thompson, 161 Mich. 391. Repeal by implication is not permitted if it can be avoided by any reasonable construction of the statutes. Couvelis v. Michigan Bell Telephone Co., 281 Mich. 223; People v. Hanrahan, 75 Mich. 611 (4 L. R. A. 751). If by any reasonable construction two statutes can be reconciled and a purpose found to be served by each, both must stand, Garfield Township v. A. B. Klise Lumber Co., 219 Mich. 31; Edwards v. Auditor General, 161 Mich. 639; People v. Harrison, 194 Mich. 363. The duty of the courts is to reconcile statutes if possible and to enforce them, Board of Control of the Michigan State Prison v. Auditor General, 197 Mich. 377. The courts will regard all statutes on the same general subject as part of one system arid later statutes should be construed as supplementary to those preceding them, Wayne County v. Auditor General, 250 Mich. 227. See, also, Rathbun v. State of Michigan, 284 Mich. 521.”

In Ritser v. Ritzer, 243 Mich. 406, we said:

“The object and purpose of the statute of 1909 (Act No. 259, Pub. Acts 1909) was to make it mandatory for the trial court to dispose of the matters of divorce, alimony, and property together.”

The title of the act reads as follows:

“An act to provide that decrees of divorce shall make provision in satisfaction of the claims of the wife in the property of the husband, to change the tenure of lands owned by husband and wife in case of divorce, and to provide for the disposition or partition of such lands or the proceeds thereof.”

In our opinion, the 1909 act does not repeal 3 Comp. Laws 1929, §§ 12745, 12747, and 12748. Section 12745 authorizes the chancery court to decree to the wife such part of the personal estate of the hus band and alimony out of his real and personal estate as is just and reasonable. Section 12747 authorizes the chancery court to impress a lien upon the real .and personal estate of the husband for the purpose of enforcing a decree providing for the payment of alimony or allowance for the support of minor children. Section 12748 authorizes a chancery court to revise a decree for alimony or the support and maintenance of minor children. The. 1909 act provides that in divorce decrees it shall be mandatory for the chancery court to include a provision in lieu of the dower of the wife in the property of the husband. It does not touch upon the subject of alimony or the support of minor children. It is a new act and in no way repeals any of the above sections. J

Claimant urges that under the circumstances of the case at bar the probate court has jurisdiction to pass upon the claim for alimony presented to it. .

We recognize the jurisdiction of the probate court to pass upon claims properly allowable by that court, but in Loomis v. Loomis, 273 Mich. 7, we held that the chancery court has the power to modify and revise provisions for alimony, whether accrued or for future obligations. The death of a husband may create a situation where the decree for alimony should be modified. The burden of having such a decree modified rests upon the party objecting to the amount of alimony previously determined.

In Martin v. Thison’s Estate, 153 Mich. 516 (18 L. R. A. [N.S.] 257, 126 Am. St. Rep. 537), we said:

“As the defendant did not seek to have it (decree) modified in his lifetime, and as no showing was made why the instalments which had accrued between the date of the decree and the marriage of the claimant should not be paid in full, we think the judge did not err in directing a verdict for the amount.”

In the case at bar, the deceased took no steps to have the divorce decree modified, nor do we find that the representative of his estate took any action to have the decree modified. In the absence of any action taken to modify the decree, the probate court may allow the claim for accrued alimony and make provision for the payment of future alimony by holding the estate open and retaining funds in it to safeguard the contingent claim.

The judgment is affirmed, with costs to appellee.

North, C. J., and Starr, Wiest, Btttzel, Bitshnell, and Reid, JJ., concurred with Sharpe, J.