Taylor v. . Taylor

93 N.C. 418

• Court: Supreme Court of North Carolina
• Decided: October 5, 1885
• Status: Published

Opinion

Asiie, J.,

(after stating the facts). The Judge, on the appeal from the Clerk, sustained his judgment in overruling the demurrer, but omitted to adjudicate upon the question whether the defendants, upon overruling the demurrer, bad the right to answer the complaint, so that the only question presented by the record upon the appeal from the judgment of his Honor is, was there error in his judgment in sustaining the judgment of the Clerk?

The defendants’ counsel contended that by the decree of divorce, a sum in gross was awarded the plaintiff, which was paid by the husband, and accepted by her in full satisfaction of her claims on him for maintenance, support, and provision, and as dower is given for the maintenance, support, and sustenance of the wife, the husband’s estate was discharged from all further liability for her support, and consequently his estate was discharged from her claim of dower.

This contention is founded on a mistaken notion of alimony,, and the relative rights of husband and wife upon a divorce a mensa et tlwo. Alimony, in its legal sense, may be defined to be that proportion of husband’s estate, which is judicially allowed and allotted to the wife for her subsistence and livelihood during the period of their separation. Shelford on Marriage and Divorce, 586. “ It is not a sum of money, or a specific proportion of the husband’s estate, given absolutely to the wife; but it is a continuous allotment of sums, payable at regular periods for her support from year to year.” 2 Bishop on Marriage and Divorce, §427.

Instead of the allotment of a certain sum to be paid from year to year, the decree in the case referred to in the pleadings,, gave the plaintiff a sum in gross, which she consented to take in lieu of all future allotments, and the husband was thereby discharged from any liability to be charged with any other sums for her support during their separation. That is so clearly the meaning and effect of the decree, that we cannot conceive how any other construction could be put upon it.

The property rights of the parties separated, remain in general unchanged. The only exception to this is, that she may hold during the separation, as a feme sole, any such property as she may acquire by her own industry, or the donations of her friends. Such is held to be her own property, which she holds against her husband and his creditors, and may dispose of as if she were a feme sole. But. when the alimony is allotted out of the specific property of her husband, she acquires no such right, but the pi'operty continues in the husband, and will revert in possession to him upon her deatli or reconciliation.

For it is given to her until a reconciliation, aucl notwithstanding the divorce, the husband will be entitled to his curtesy in her lands, and the wife to dower in his, just as if there had been no divorce; and the husband would still have the right to reduce her dioses in notion into possession, and upon her death administer upon her estate — Schouler on Domestic Relations, §222 — and the wife cannot only claim her dower upon the death of her husband, but claim her distributive share of his personal estate, in case he dies intestate. 2 Scribner on Dower, 515; Bishop on Marriage and Divorce, Ibid-, 2 Blackstonc Com., p. 130. But we need not go out of our own State for authority upon the subject. In Rogers v. Vines, 6 Ired., 293, Chief Justice Ruffin, who delivered-the opinion of the Court, has given a very full and clear exposition of the law appertaining to the. legal rights of husband and wife during a separation under a decree of divorce a mensa et thoro.

Speaking of alimony, he said: “ In its nature then, it is a provision for a wife separated from her husband, and it cannot continue after reconciliation or the death of either party. There is no occasion for it after the death of the husband, for she then becomes entitled to dower and a distributive share, though ■divorced a mensa et thoro ; unless, indeed, she should lose dower by leaving her husband and living in adultery. Co. Lit., 32, 33. Moreover, the decree for alimony, vests in the wife no absolute right to the allowance, whether it consists of money, or specific things; for, besides that it ceases upon reconciliation, it may be changed from time to time, and reduced or enlarged at the discretion of the Court.”

There is no error in the judgment of his Honor in sustaining the judgment of the clerk in overruling the demurrer, but the clerk was in error in refusing to allow the defendants to answer, after overruling their demurrer. The cause must therefore be remanded to the Superior Court óf Rutherford, that the defendants may answer the complaint of the plaintiff, should they still be advised so to do.

Error. Remanded.