
    Mary H. Wilson, Respondent, v. Charles N. Hinman, Appellant.
    
      Alimony “as long as she shall live”—when the payment is secured by a mortgage the obligation survives the husband—when not secured it does not.
    
    Where a judgment of absolute divorce granted in favor of a wife provides for the payment to the wife of a certain sum per year as alimony “ so long as she shall live,” and that the payment of such alimony shall be secured by a mortgage upon certain property, the death of the husband, subsequent to the execution of the mortgage, does not terminate the lien of the mortgage nor prevent the wife, in the event of the failure of the deceased husband’s devisee to pay the alimony accruing after the husband’s death, from foreclosing the mortgage.
    
      Semble, that, unless a judgment of absolute divorce, providing for the payment of alimony to the wife as long as she shall live, requires the alimony to be secured by a lien upon real property, the provision that it be paid so long as the wife shall live is not operative after the death of the husband.
    Houghton, J., dissented.
    Appeal by the defendant, Charles N. Hinman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 25th day of April, 1904, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    
      Lewis Seymour and A. J. McCrary, for the appellant.
    
      Wilber & Yetter, for the respondent.
   Smith, J.:

The complaint is challenged as not stating a cause of action. It alleges that heretofore the plaintiff and one Balis L. Hinman were husband and wife, and in an action judgment was obtained by this plaintiff against said Balis L. Hinman dissolving the marriage relation and providing for the payment of $300 a year alimony “ so long as she shall live.” The judgment further provided that the payment of such alimony should be secured by a mortgage upon certain property. The complaint alleges that pending the trial of this divorce action Balis L. Hinman transferred this property without consideration, and for the purpose of defrauding plaintiff, to his brother, Charles N. Hinman, this defendant, who had knowledge of the fraudulent intent with which the property was transferred. Following the judgment in the divorce action a mortgage was executed by Balis L. Hinman and Charles N. Hinman, this defendant, upon the said property, providing for the payment to the plaintiff of the aforesaid sum of $300 annually so long as she shall live.” The said mortgage was duly approved by the court and filed and recorded in Broome county clerk’s office. The-complaint further alleges that Balis L. Hinman died upon the 27th day of November, 1902, having made this defendant his sole devisee, and that the defendant had failed to comply with the conditions of said mortgage by omitting to pay the sum of $25 which became due and payable on the 6th day of July, 1903, and also by omitting to pay the sum of $25 which became due and payable on the 3d day of August, 1903. This demurrer squarely raises the question whether the court, in awarding a decree of divorce, has power to direct the payment of alimony after the death of the defendant.

In advising the affirmance of this judgment I yield to what I deem to be controlling authority within this State. In Burr v. Burr (10 Paige, 37) a similar decree was under review, and challenged as unauthorized. In respect thereof Chancellor Walworth says: “ And the objection that the vice-chancellor was not authorized to decree a provision for the alimony of the wife, which should continue beyond the life of the husband, is clearly untenable. The statute authorizes the court to make such order and decree for the suitable support and maintenance of the wife out of his property as may be just and proper. (2 R. S. 147, § 53.) And it certainly cannot be unjust or improper to compel a husband, whose wife has been driven from her home by his cruelty or in consequence of his defilement of the marriage bed, to provide her a suitable support for the remainder of her life; instead of permitting him to dispose of his property to strangers, at his death, leaving her entirely destitute.” This case was in the Court of Errors on appeal and reported in 7 Hill, at page 222. The judgment below was affirmed, and in regard to this provision the court said: “In regard to the objection that the decree should have made provision for a reduction or discontinuance of the alimony, if the appellant dies leaving a competent provision for the respondent by will, it is enough to say that the appellant has power to obviate this objection by his own mere volition.” In Galusha v. Galusha (43 Hun, 181) the head note in part reads : “ That while it was not usual for the court to direct by judgment the payment of alimony beyond the period of the joint lives of the parties, it had power to direct, as it had in this case, that to be done in the lifetime of the defendant which would result in making an effectual provision for such payments.” In that action the court had directed alimony to be paid during the lifetime of the plaintiff, and directed that alimony to be secured by a mortgage to be executed by the defendant upon certain property. The provision was substantially the same as in the case at bar. Under the allegations in this complaint of the fraudulent transfer by the defendant in the divorce action to the defendant Charles N. Hinman, the property was subject to all claims against the same and with like effect as though it had been still the property of Balis L. Hinman. The defendant Charles N. Hinman, therefore, does not stand as a surety, but in respect of this mortgage stands in the shoes of the original debtor. In Johns v. Johns (44 App. Div. 537), while the remarks are to an extent obiter, the authority of Burr v. Burr (supra) is recognized as establishing the law in this State that provision may be made for securing the payment of alimony after the death of the defendant by the giving of a mortgage by the defendant upon his property. This rule also seems to be recognized by Justice Rog-ees in the case of Kellogg v. Stoddard (40 Misc. Rep. 94).

As against this authority we have no case holding distinctly a contrary rule. The case of Field v. Field, decided in the first department and reported in 15 Abbott’s New Cases, 434, declares a different rule where the judgment did not require the alimony to be secured by a lien upon property. It probably may be regarded as settled that unless the judgment requires the alimony to be secured by a lien upon property, the provision that it be paid so long as the plaintiff may live is not operative after the death of the defendant. Such a rule seems to be held because of the impracticability of compelling a personal obligation to be performed after death. When, however, in addition to the personal obligation security is required and the decree expressly provides that the alimony is to continue so long as plaintiff may live, the courts seem to consider the obligation as personal while the defendant lives and as imposed upon the security after his death. (See Galusha v. Galusha, supra, and Johns v. Johns, supra.)

I advise an affirmance of the judgment.

All concurred, except Houghton, J., dissenting.

Interlocutory judgment affirmed, with' costs. 
      
      2 R. S. 147, § 54.— [Rep.
     