Gust, Robert P.

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 37 Number 3 Article 7 1961 Divorce Decree - Duration and Termination of Liability for Support - Does the Father's Obligation to Support His Minor Children Terminate at His Death Robert P. Gust Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Gust, Robert P. (1961) "Divorce Decree - Duration and Termination of Liability for Support - Does the Father's Obligation to Support His Minor Children Terminate at His Death," North Dakota Law Review: Vol. 37 : No. 3 , Article 7. Available at: https://commons.und.edu/ndlr/vol37/iss3/7 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESTherefore, it is submitted that the rule be abolished so that theprosecution may be given a chance to overcome the difficulty ofproof if the proximate relationship between injury and death canbe proved beyond a reasonable doubt.BERNARD HAUGANDIVORCE DECREE - DURATION AND TERMINATION OF LIABILITYFOR SUPPORT - DOES THE FATHER'S OBLIGATION TO SUPPORT HisMINOR CHILDREN TERMINATE AT HIS DEATH? - Petitioner, divorcedwife of deceased brought on action against his estate as guardianof her minor daughter seeking an order to obtain monthly supportpayments accruing subsequent to the death of the deceased. Thegrounds of the petition were that the obligations of the deceasedwith respect to an agreement incorporated into a divorce decreesurvived his death. The Supreme Court of Mississippi, four justicesdissenting, held that such liability may be imposed against thefather's estate only when the contract to support, affirmatively soprovides, either by express terms or fair implication. Lewis v. Lewis,125 So. 2d 286 (Miss. 1960).At common law the father's obligation to support his offspringterminated at his death.' The arguments given for adhering tothe common law rule are that the father has the right to disinherithis children2 and that to permit such obligation to survive wouldupset the laws regulating the distribution and devolution ofestates.- Where a divorce decree alone has made provision forsupport payments4 or where a prior agreement has been incorporat-ed into the divorce decree,; a few jurisdictions hold that theobligation does not survive the father's death. This minority, rely-ing on their interpretation of the separation agreement incorporatedin the divorce decree, reason that it must so provide either expresslyor by necessary implication in order that the payments survive thefather's death.6The weight of authority today, however, is that the support1. Guinta v. LoRe, 31 So. 2d 704 (Fla. 1947) (dissenting opinion); Carey v. Carey,163 Tenn. 486, 43 S.W.2d 498 (1931).2. Robinson v. Robinson, 131 W. Va. 160, 50 S.E.2d 455 (1948).3. Carey v. Carey, 163 Tenn. 486, 43, S.W.2d 498 (1931).4. Cooper v. Cooper's Estate, 350 Il. App. 37, 111 N.E.2d 564 (1953).5. Gordon v. Gordon, 195 F.2d 779 (D.C. Cir. 1952); Bowling v. Robinson, 332S.W.2d 285 (Ky. 1960); In re Johnson's Estate, 185 Misc. 352, 56 N.Y.S.2d 771 (Surr.Ct. 1945).6. See Note 5 supra.1961]NORTH DAKOTA LAW REVIEWobligation does not terminate at the father's death.7 These jurisdic-tions hold that if the divorce decree stipulates for payments tocontinue until further order of the court," or during the minorityof the children, 9 such provisions alone will preserve the duty tosupport from the father's estate. Also some courts hold that suchprovisions will constitute a lien on the estate where statute per-mits.'" The proposition that the father's duty to support does notterminate is substantiated by cases where a contract to support,similar to that found in the instant case, has been incorporatedinto the divorce decree. 1 It has been stated that express termsindicating that such obligations should be binding on the father'slegal representatives are unnecessary,' 2 and that if the contractto support was intended to terminate at death, it should have sobeen expressed.'" Another argument used is that where terminatingcontingencies are stated the obligation will terminate only on thosecontingiences. 14In answer to the reasoning that the obligation to support ter-minates upon the father's death, it has been argued that suchobligation does not impair the laws of descent and dirtribution any-more than other judgments-s and that support of the children is atleast as important as the right of testamentary disposition.'0North Dakota has not decided the specific issue involved in thisdiscussion, but an analogy supporting the majority rule may bedrawn from a recent North Dakota decision which permitted thedivorced wife of the decedent to receive monthly alimony pay-ments from her husband's estate pursuant to the divorce decree."Regardless of the approach and reasoning adopted by the courtsin relation to this problem, the viewpoint that the father's obligation,with respect to the support of his children, survives his death7. In re Smith's Estate, 200 Cal. 654, 254 Pac. 567 (1927); Garber v. Robitshek,226 Minn. 398, 33 N.W.2d 30 (1948); Spencer v. Spencer, 165 Neb. 675, 87 N.W.2d212 (1957); Guggenheimer v. Guggenheimer, 97 N.H. 399, 112 A.2d 61 (1955); Smithv. Funk, 141 Okla. 188, 284 Pac. 638 (1930); Mansfield v. Hill, 56 Ore. 40, 107 Pac.471 (1910); Morris v. Henry, 193 Va. 631, 70 S.E.2d 417 (1952).8. Newman v. Burwell, 216 Cal. 608, 15 P.2d 511 (1932); Mansfield v. Hill, 56Ore. 40, 107 Pac. 471 (1910).9. Smith v. Funk, 141 Okla. 188, 284 Pac. 638 (1930).10. Guggenheimer v. Guggenheimer, 97 N.H. 399, 112 A.2d 61 (1955); Morris v.Henry, 193 Va. 631, 70 S.E.2d 417 (1952).11. In re Caldwell, 129 Cal. App. Div. 613, 119 P.2d 9 (1933); Simpson v. Simpson,108 So. 2d 632 (Fla. App. 1959); Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 039 (1952);Silberman v. Brown, 72 N.E.2d 267 (Ohio 1946); Huffman v. Huffman, 311 Pa. 123,166 Atl. 570 (1933).12. Barnes v. Klug, 129 App. Div. 192, 113 N.Y. Supp. 325 (Sup. Ct. 1908).13. Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 (1952).14. Huffman v. Huffman, 311 Pa. 123, 166 Atl. 570 (1933).15. Morris v. Henry, 193 Va. 631, 70 S.E.2d 417 (1952).16. Newman v. Burwell, 216 Cal. 608, 15 P.2d 511 (1932).17. Stoutland v. Stoutland's Estate, 103 N.W.2d 286 (N.D. 1960).[Vol. 37RECENT CASESand which is followed by the majority of jurisdictions appears tobe the most reasonable.ROBERT P. GUSTINTOXICATING LIQUORS - LiCENSES - IS A LIQUOR LICENSE PRO-PERTY OR A PRIVILEGE? -Plaintiff, as executor of decedent's estate,requested the Pennsylvania Liquor Control Board to transfer thedecedent's liquor license in accordance with his testamentary direc-tions.' The Commonwealth included the value of this right to applyfor a transfer of decedent's liquor license as part of decedent'spersonal estate in an appraisement for inheritance tax purposes.Upon the Commonwealth's appeal from the Trial Court's decision,holding such value non-taxable, the Supreme Court of Pennsylvania,overruling a previous decision,- held, with one justice dissenting,that the value of the right to apply for a transfer of the license is aproperty right, subject to inclusion as an asset of the estate for in-heritance tax purposes. In re Estate of Feitz, 167 A.2d 504 (Pa.1961).The general law is well settled that a liquor license is neitherproperty nor a contract right; 3 but only a purely personal priviledgefor a specific limited time.4 Although often valuable, it is nottransferrable without permission of the granting board, 5 nor doesit go to the personal representative or become an asset of theholder's estate in case of death.6 However, it may have the qualitiesof property,7 or it may be placed in the category of property wherethe question concerns the rights of the licensee's creditors orpersonal representative, and then only when it has been expresslymade transferrable by legislative enactment.81. Pa. Stat. Ann. tit. 47, § 4-468 (1951). "Except in cases of emergencytransfers of licenses may be made only at times fixed by the board. In the case of thedeath of a licensee, the board may transfer the license to the surviving spouse or personalrepresentative or to a person designated by him."2. In re Ryan's Estate, 375 Pa. 42, 99 A.2d 562 (1953). Here the value of thelicense and the value of the right to apply for a transfer thereof were not taxable.3. State v. Alabama Alcoholic Beverage Control Board, 246 Ala. 198, 19 So. 2d 84.1(1944); Owens v. Rutherford, 200 Ga. 143, 36 S.E.2d 309 (1945); Walker v. City of,Clinton, 244 Ia. 1099, 59 N.W.2d 785 (1953).4. In re Bay Ridge Inn,, 94 F.2d 555 (2d Cir. 1938); People v. Harrison, 256 Ill.102, 99 N.E. 903 (1912); Fredrico v. Braaten, 181 Md. 507, 30 A.2d 776 (1943).5. Wood v. School Dist. No. 32, 80 Neb. 722, 115 N.W. 308 (1908); United StatesFidelity & Guarantee Co. v. Little, 76 N.H. 427, 83 Atl. 513 (1912); Rawlins v. Treve-than, 139 N.J.L. 226, 50 A.2d 852 (1947); Barth v. Brandy, 165 Wis. 196, 161 N.W.766 (1917).6. Kosco v. Hackmeister, Inc., 396 Pa. 288, 152 A.2d 673 (1959).7. Midwest Beverage Co. v. Gates, 61 F.Supp. 688 (N.D. Ind. 1945). The use ofthe permit, once granted, has the elements of property irrespective of what the legislaturemay declare about the permit itself. Kline v. State Beverage Department of Florida, 77So. 2d 872 (Fla. 1955); Stone v. Farish. 199 Miss. 186. 23 So. 2d 911 (1945).8. Duncan v. Truman, 74 Ariz. 328, 248 P.2d 879 (1952); State v. Superior Courtof Marion County, 233 Ind. 563, 122 N.E.2d 9 (1954).1961]

Divorce Decree - Duration and Termination of Liability for Support - Does the Father\u27s Obligation to Support His Minor Children Terminate at His Death

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Divorce Decree - Duration and Termination of Liability for Support - Does the Father\u27s Obligation to Support His Minor Children Terminate at His Death

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