
    Succession of Mark KING.
    No. 2117.
    Court of Appeal of Louisiana. Fourth Circuit.
    March 7, 1966.
    Rehearing Denied April 4, 1966.
    Writ Granted June 7, 1966.
    See also, La.App., 170 So.2d 129.
    Brown, McKernan & Ingram, Michael S. Ingram, Baton Rouge, for plaintiff-appellant.
    
      James E. Quinlivan, Jr., New Orleans, for defendant-appellee.
    Before McBRIDE, YARRUT and BAR-NETTE, JJ.
   YARRUT, Judge.

The divorced wife seeks to recover from the Succession of her deceased husband, now being administered in the Civil District Court for the Parish of Orleans, the sum of $54,600.00, the aggregate of alimony, at the rate of $50.00 weekly, she would have received from him had he lived, based upon a divorce and alimony judgment rendered in 1954 by a Florida Circuit Court. The amount claimed is based upon her present age of 53, with a life expectancy of 20 years.

The judgment of the Florida Circuit Court was in confirmation of a written stipulation entered into between the parties for the payment of alimony, child support and custody and division of property. All alimony accrued prior to the husband’s death was paid. Only future alimony after the husband’s death is involved here.

The Orleans Civil District Court, without giving reasons, maintained the exception of no cause of action, filed by the Succession representative, and dismissed the divorced wife’s suit, from which she has taken this appeal.

Much has been argued in brief and in court that the stipulation of the deceased to pay alimony to his divorced wife was irrevocable and binding because it arose ex contractu to be paid during her life until she remarried. The obligation to pay alimony stipulated by the deceased was merely the confirmation of a duty imposed by law and governed by law as to its duration and future amount. The stipulation in effect fixed only the amount of the alimony. Whether or not the stipulation or judgment stated the alimony was for life is immaterial. The law requires the payment of alimony to the wife ad infinitum as long as she is in necessitous circumstances, based upon the husband’s ability to pay, and the wife’s changing needs, subject always to judicial review to increase, decrease or terminate. Its approval by the Florida Court incorporated into the judgment of divorce gave it no more than judicial approval, subject to future judicial review. Succession of Vidalat, 155 La. 1005, 99 So. 801.

Under the federal constitution only final judgments of foreign courts are entitled to full faith and credit in the courts of all other states.

However, an alimony judgment, which is subject to review and modification by the court which rendered it, based upon the wife’s then needs and the husband’s ability to pay, is not a final judgment entitled to full faith and credit.

In People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614—615, 67 S.Ct. 903, 906, 91 L.Ed. 1133, although the case involved a custody decree, the court remarked in language seemingly broad enough to cover alimony decrees that, “so far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do. * * * [I]t is clear that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or'to de-part from it as does the State where it was rendered.”

Folds v. Folds, La.App., 160 So.2d 251, held that alimony judgments of an Arkansas court, which are subject to review by that court, should be recognized and executed in Louisiana only with respect to past due and unpaid alimony.

Sec. 65.15 Fla.Stat. (1963) F.S.A., provides that alimony agreements or judgments are subject to modification or termination if the circumstances of the parties, or the financial ability of the husband, shall have changed since the execution of such agreement, or the rendition of such judgment. Aldrich v. Aldrich, (Fla.) 163 So.2d 276.

It was stated in open court and stipulated in writing, that the deceased, in his pro-hated last will and testament, after first providing that all his debts be paid, bequeathed his divorced wife a legacy of approximately $40,000.00 which, added to her alimony claim, if allowed, would give her a total of $94,600.00, or about 45% ■of his net estate.

He also left 35% to his second wife and widow; 35% to his minor daughter, whom he had agreed to support in his pre-divorce ■stipulation.; and 10% to a brother. It is difficult to believe that the deceased would have bequeathed this legacy to his divorced wife If he thought she could claim, in addition to the legacy, future alimony for a life expectancy of 20 years, or $54,600.00.

The Florida Court of Appeal in the case of Scott v. Gratigny, 166 So.2d 816, held that judicial recognition of an agreement between parties for payment of periodic sums to a divorced wife during the remainder of her life or until her remarriage as permanent alimony, was sufficient recognition of an agreement to warrant its enforcement against deceased husband’s estate as an obligation of the estate. However, it is not necessary to decide that issue here for assuming, arguendo, that the alimony did not cease with the death of the husband, certainly he, if alive, could have obtained a reduction or termination of the alimony, had the donation been made inter vivos, on the ground she was no longer in necessitous circumstances. Why then should not his Succession representative have the same right in view of the legacy?

The Florida law provides the court can, in the exercise of its equity power, fix a lump sum which the Succession must pay the wife. Aldrich v. Aldrich, cited supra.

We have no Florida jurisprudence as to the factors the Florida courts consider in determining an equitable lump sum settlement; but we can look to Louisiana law which provides that, where a husband dies and leaves a widow in destitute circumstances, she is entitled at most to a fourth of his estate, less any amount bequeathed to her. LSA-C.C. art. 2382. Certainly,, a divorced wife should not have a greater-right to recover post mortem alimony than; could the lawful widow of the deceased). in¡ necessitous circumstances, for future; support.

Austin v. Succession of Austin, 225 La. -449, 73 So.2d 312, is a case in point. There the plaintiff, as widow, claimed the marital fourth from her deceased husband’s succession under LSA-C.C. art. 2382. The ■court maintained an exception of no cause ■of .action to her petition because a partition had already been made of the community, and a bequest of $50,000.00 was made to her in his last will and testament,, for which reasons she was not in necessitous circumstances.

In this case the husband paid all alimony due to the time of his death. His Succession representative could not challenge the right of the divorced wife to future alimony until she made her demand in the Succession proceeding.

If the husband were alive and discovered for the first time that his wife, six months before, was no longer in necessitous circumstances as the result of an inheritance or gainful employment, could it be said that, when she sued him for alimony for the six months, he could not then plead she was not in necessitous circumstances for that period? To hold the husband responsible otherwise for alimony after the wife was no longer in necessitous circumstances, would open the door to concealment and fraud. The deceased husband certainly could not challenge the claim after his death, and his Succession representative could only contest the claim when the divorced wife made her demand in the Succession proceeding. Nor can it be said that she is entitled to alimony up until the time the Succession representative made the challenge. The legacy left to her was sufficient to cover the alimony for the interim between his death and its challenge by the executor, and for the alimony that would accrue for nearly her whole life expectancy of 20 years, even though she may not have lived but a few years.

On the exception of no cause of action considered by the District Court, the District Court necessarily had to consider as true the allegations of the petition, certified copies of the pre-divorce agreement between the parties, and the certified copy of the judgment of divorce recognizing such pre-divorce agreement, all made part of the petition. In view of the signed stipulation between the parties filed in the record here concerning the $40,000.00 legacy the divorced wife will receive from her husband’s Succession, it would serve no purpose to remand the case to admit such stipulation, since it now forms part of the documents in the record which must be considered in determining whether Plaintiff has stated a cause of action. LSA-C.C.P. art. 927; Elliott v. Dupuy, 242 La. 173, 135 So.2d 54; Clark v. Reed, La.App., 122 So.2d 344. See also Babineaux v. Southeastern Drilling Corp., La.App., 170 So.2d 518.

. The judgment of the District Court, maintaining the exception of no cause of action, is correct and is affirmed; Plaintiff to pay all costs in both courts.

Judgment affirmed.'

McBRIDE, Judge

(concurring):

Plaintiff seeks to hold defendant’s succession liable for post demise alimony on a final decree of divorce rendered by the Circuit Court of Dade County, Florida, which confirmed and approved an agreement previously entered into between plaintiff and deceased as to alimony, child support, division of property, custody of their child, etc. Said agreement as well as the decree are annexed to and made part of plaintiff’s petition.

The agreement beween the parties with respect to alimony stipulates:

“6. Husband agrees to pay Wife the sum of fifty dollars ($50.00) per week until her death or remarriage, whichever event occurs first, beginning with the date of the execution of this Agreement, by mailing said sum weekly to Wife. Husband agrees also to pay all extra-ordinary medical, hospital and dental expenses of Wife.”

The divorce decree provides:

“4. That the agreement between the parties as to alimony, child support, division of property, and custody of the child of the parties, be, and the same is hereby, found to be fair and equitable, and is hereby ratified, confirmed and approved, and the same is hereby adopted as a part of the decree of this court.”

Decedent’s executor interposed an exception of no cause of action grounded on the theory that all alimony terminated upon the death of the decedent; that Louisiana will recognize a foreign judgment for alimony installments only as to accrued installments and then only when the court which rendered the judgment has no authority or discretion to modify it; further that, Louisiana courts have no authority to grant executory judgments for future installments of alimony under any circumstances.

I am primarily concerned with whether that portion of the Florida decree respecting future alimony (1) is final and if not, (2) whether recognition and full faith and credit should be given the foreign decree. C.C.P. 2541. The pertinent Florida statute governing the question of finality as well as the controlling Florida jurisprudence have been stipulated by counsel. See C.C.P. art. 1391.

Under Florida jurisprudence as a general proposition, alimony awarded by a chancellor terminates upon the death of either of the parties or upon the remarriage of the wife. See Allen v. Allen, 111 Fla. 733, 150 So. 237; Deigaard v. Deigaard, Fla. App., 114 So.2d 516. However, there has been an exception to this general rule which permits a former wife to secure payments in the nature of alimony from the estate of her deceased former husband, when there has been an agreement providing for payments to her for as long as she may live or until she remarries. See Allen v. Allen, supra; Underwood v. Underwood, Fla., 64 So.2d 281; Aldrich v. Aldrich, Fla., 163 So.2d 276; Scott v. Gratigny, Fla.App., 166 So.2d 816.

Sec. 65.15 Florida Stat. (1963) F.S.A. provides:

“65.15 Modification of alimony decrees ; agreements, etc. — Whenever any husband and wife heretofore, or hereafter, shall have entered into any agreement providing for the payments for, or in lieu of, separate support, maintenance or alimony, whether in connection with any action for divorce or separate maintenance, or with any voluntary property settlement, or whenever any husband has pursuant to the decree of any court of competent jurisdiction been required to make to his wife any such payments, and the circumstances of the parties or the financial ability of the husband shall have been changed since the execution of such agreement, or the rendition of such decree, either party may apply to the circuit court of the circuit in which the parties, or either of them, shall have resided at the date of the execution of such agreement, or shall reside at the date of such application, or in which such agreement shall have been executed, or in which such decree shall have been rendered, for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the court, after giving both parties an opportunity to be heard, and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and'the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in such agreement, or in such decree.
“Thereafter the husband shall pay and be liable to pay the amount of separate support, maintenance or alimony directed in such order and judgment, and no other or further amount, and such agreement, or such decree, for the purpose of all actions or proceedings of every nature and where-ever instituted, whether within or without this state, shall be deemed to be, and shall be, modified accordingly, and it shall be unlawful to commence, or cause to be commenced as party, or attorney, or agent, or otherwise, in behalf of either party in any court any action or proceeding otherwise than as herein provided, nor shall any court have jurisdiction to entertain any action or proceeding otherwise than as herein provided to enforce the recovery of separate support, maintenance or alimony otherwise than pursuant to such order and judgment.
“This section is declaratory of existing public policy and laws of this state, which is hereby affirmed and confirmed in conformance with the provisions hereof, and it shall be the duty of the judges of the circuit courts of this state to construe liberally the provisions hereof in order to effect the objects and purposes hereof and the public policy of the state as hereby declared.”

Thus, by the force of statutory provisions, the State of Florida retained and still has full jurisdiction to modify, by decrease or increase, the decree respecting the payment of alimony by the husband to the wife. The decree declared upon comes squarely within the purview of Sec. 65.15, Fla.Stat. (1963) F.S.A., and the Florida courts may modify the decree if the circumstances of the parties or the financial ability of the husband shall have changed since the execution of the agreement or the rendition of the decree.

Even after the husband’s demise a decree awarding alimony may be modified by a Florida court of equity. The Supreme Court of Florida in Aldrich v. Aldrich, supra said:

“We note, parenthetically, that a decree awarding technical alimony—that is, ‘nourishment’ or ‘sustenance’—to the wife, even though based upon the stipulation or agreement of the parties as to the amount thereof, is subject to modification by the court when a change of circumstances is shown, under our statute expressly authorizing modification of such agreements. Sec. 65.15, Fla.Stat. (1963) F.S.A. And it would seem that the equity court would have jurisdiction to modify a decree of divorce awarding alimony payable in installments, after the death of the husband, so as to grant a gross sum out of the estate of the deceased in lieu thereof. See Van Haltern v. Van Haltera (1958) 351 Mich. 286, 88 N.W.2d 485.”

Clearly then, the Florida judgment upon which plaintiff seeks to recover alimony for the period of her life expectancy (20 years) in a lump sum ($54,600) is not and never was final under the existing public policy of the State of Florida and therefore is not entitled to efficacy in Louisiana under Article IV, § 1 of the Constitution of the United States providing that:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings *

Louisiana does not accord full faith and credit to judgments of sister states when the foreign state retains or has the power to alter or modify the judgment.

In Weston v. Weston, 177 La. 305, 148 So. 241, our Supreme Court was concerned with the recognition and enforcement of a Michigan decree for alimony. The weight of the evidence in the case shows that the decree was not final and merely interlocutory. The Court declined to recognize the decree saying:

“The judgment on which the present suit is based, not being final under the laws of Michigan, where it was rendered, is not such a judgment as can be made executory in this state under the full faith and credit clause of the Federal Constitution. Weaver v. Schumpert, 118 La. 315, 42 So. 949.”

I am not unmindful of Devore v. Devore, La.App., 172 So.2d 923 (cert. den.), decided by this court, wherein we held that a provision in a divorce decree for alimony payable in installments, is a final judgment within the full faith and credit clause insofar as accrued installments are concerned. However, in the Devore case the husband was alive. In the instant case upon the husband’s death alimony installments were abated and the only remedy the wife had was to have the decree amended by the equity courts of Florida so as to grant her a gross sum out of the estate of the deceased in lieu of the alimony.

In Folds v. Folds, 160 So.2d 251, the Second Circuit Court of Appeal refused to give recognition to an Arkansas judgment because the courts of that state retained jurisdiction to modify, alter or amend the judgment after its rendition. Said the court:

“We think there is no question as to the principle that the judgment of a foreign state is not entitled to full faith and credit in Louisiana and cannot be made executory in those cases in which the court of such foreign state retains jurisdiction for the purpose of modification, alteration or amendment of the judgment after its rendition; Weston v. Weston, 177 La. 305, 148 So. 241; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905.”

In People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, the United States Supreme Court held that a judgment has no constitutional claim to a more conclusive or final effect in the state of the forum than it has in the state where rendered.

Plaintiff in her petition bases her claim against the succession on the Florida judgment. However, the thought occurs to me that under C.C.P. art. 2164, which provides that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal, may be broad enough to empower us to embark on a determination whether plaintiff has a cause of action on the agreement between herself and the decedent. My thought is that she has no cause of action on the agreement because it became merged in the judgment which provides “ * * * the same (the agreement) is hereby adopted as a part of the decree of this court.” What then became of the agreement upon rendition of the judgment? The law, so far as I am able to ascertain, is to the effect that the agreement became merged with and inseparable from the judgment and any claim of plaintiff thereafter would arise from the judgment and not be based on the antecedent agreement.

American Jurisprudence, Vol. 30A “Judgments”, p. 258, provides:

“The general rule that a judgment in favor of the plaintiff merges the cause of action on which the action is brought and that thereafter he can only maintain an action on the judgment itself and not on the cause of action applies to judgments entered by consent.”

From Anno.: 2 A.L.R.2d 560; 97 L.Ed. 1203:

“The general rule applies equally to judgments entered by agreement or consent, preventing the plaintiff from maintaining another suit on the same cause, but permitting him to maintain an action on the judgment.

The above is consonant with the rule in Louisiana stated in Dunn v. Pipes, 20 La. Ann. 276, as follows:

“A consent judgment is binding between the parties, and has the effect of the thing adjudged, unless reversed in the mode and within the time prescribed by law. (Greenwood v. City of New Orleans) 12 [La.] A[nn], 426.”

It must be presumed, in the absence of a showing to the contrary, that the Florida law is identical with that prevailing in Louisiana on the above proposition. I hardly think that if this action was being adjudicated in that state that the Florida courts would permit plaintiff to assert a cause of action on the agreement rather than on the judgment. This in spite of a stipulation in the agreement that notwithstanding its incorporation in the divorce decree that the provisions thereof shall not be merged in any such judgment or decree, “but shall in all respects survive.”

Plaintiff may not sever the agreement from the judgment. If she could do so it could only be on the theory that she had two causes of action. It would be absolutely anomalous to say that she has separate and distinct causes of action, one on the judgment and one on the prior agreement.

I concur in the decree.

BARNETTE, Judge

(dissenting) :

The concept of post-demise alimony is foreign to the laws and jurisprudence of Louisiana. My reluctant willingness to accept the concept for application in the instant case as opposed to the unwillingness of my colleagues, who form the majority, to do so, is the basic point of difference between us. As I see it we are here called upon under the full faith and credit clause in Article IV, Section 1, of the Constitution of the United States to recognize and enforce an obligation sanctioned by the laws of Florida and imposed by a court of that State. It is our duty to do so, even though it involves the application of an alien concept. I therefore respectfully dissent.

I am of the opinion that plaintiff has stated a cause of action and that the judgment should be reversed.

The litigation in the series of cases under the name Aldrich v. Aldrich is particularly applicable to the case before us. It began when a wife, who had obtained a divorce in Florida, brought suit in West Virginia to recover alimony which had accrued after the date of the husband’s death. The West Virginia courts denied her recovery on the grounds that the Florida decree was invalid and unenforceable insofar as it purported to make the alimony award a charge on the husband’s estate. The wife applied to the United States Supreme Court for writs of certiorari and review which were granted.

The United States Supreme Court, on its own motion, then certified questions to the Supreme Court of Florida to determine whether or not, under the law of that State, the decree was enforceable against the estate.

The opinion of the Supreme Court of Florida in response to the questions is significant. The court reviewed the history and nature of alimony in that State. The original concept of alimony was the common law obligation of the husband to provide for the daily necessities of his wife. The obligation was made statutory in 1828, and the decisions under the statutes continued to follow the common' law rule until fairly recently.

“This original concept of alimony as a periodic payment from year to year in accordance with the needs of the former wife and the ability of the former husband to pay, which could be modified by the court to meet a change in either circumstance, was consistently adhered to by this court, despite efforts by lower courts to broaden it — until, in 1947, the Legislature amended Section 65.08 to provide for periodic payments of alimony or payment ‘in a lump sum’. Ch. 23894, Laws of Florida, Acts of 1947. Because of the strict construction of the statute, as amended, as precluding an award of both periodic and lump-sum alimony, see Ehrlich v. Ehrlich, Fla.App.1961, 130 So.2d 630, and cases cited, the Legislature again intervened and amended Section 65.08 by adding the words ‘or both’, so that a lump-sum award of alimony may now be joined with a periodic-payment award. Ch. 63145, Laws of 1963.” 163 So.2d at 278.

The court then turned to a consideration of whether or not an alimony award could be made binding on the estate of the husband and concluded as follows:

“The decisions of this and other courts, referred to above, are in accord with the great weight of authority that, in the absence of statute or agreement between the parties, it is not ordinarily permissible for a court to provide in its decree that alimony payments shall continue to accrue after the death of the ex-husband and be payable out of his estate.” (Emphasis added.) 163 So.2d at 279.

One of the cases discussed by the Florida Supreme Court in reaching its conclusion was North v. North, 339 Mo. 1226, 100 S.W. 2d 582, 109 A.L.R. 1061 (1936), the following portion of which was quoted with approval :

“The provision in the decree awarding the wife $500 per month to continue so long as she remained single and unmarried (the same as that provided in the contract between the parties) justifies the conclusion that the decree was an approval of the contract, and not an award of alimony, because the court had no authority to make an award of alimony to continue so long as the wife remained single and unmarried, but did have authority to approve a contract between the parties containing that provision.” 339 Mo. at 1233, 100 S.W.2d at 586, 109 A.L.R. at 1065.

There is one difference between the Al-drich case and the case before us now which serves to emphasize plaintiff’s right to alimony after her husband’s death. In the Aldrich case there had been no agreement between the parties providing for payments to continue after death of the husband, but the court included that requirement in the divorce decree. The Florida Supreme Court held that the provision in the decree was in error, but no appeal had been taken and defendants could not raise the issue to attack the decree collaterally.

Before upholding the validity of the decree on the basis of collateral estoppel the Florida court dealt with the wife’s contention that the court could order alimony to be a charge on the husband’s estate even if there had been no agreement to that effect. The wife was relying on language in Johnson v. Every, 93 So.2d 390 (Fla.1957). In rejecting the wife’s argument, the court pointed out that there had been an agreement in the Johnson case and that the issue there had been whether or not the agreement, which had been adopted into the decree, provided for a continuation of payments after the husband’s death. The court held in Johnson that the provision did show an intent to bind the estate. This holding was approved in the Aldrich case.

The provision in the decree in Johnson was that the payments “ * * * ‘shall cease, upon the death of the plaintiff or upon her remarriage to any person other than the defendant.’ * * * ” This provision is the same as the one before us. Under the law of Florida it makes alimony payments a charge on the estate of the husband. There can be no doubt that plaintiff has a cause of action in Florida under the agreement and the decree incorporating it.

Another question arises as to whether or not the plaintiff can successfully pursue her cause of action in the succession proceeding in this State. I am convinced that both state and federal law require us to enforce her rights under the Florida decree. She is a judgment creditor of the succession under a judgment of a sister state.

In the recent case of Devore v. Devore, La.App., 172 So.2d 923 (1965), cert. den., 247 La. 1015, 175 So.2d 301 (1965), this court considered whether or not a wife could sue her husband here for accrued alimony which had been ordered in a Nevada divorce decree. The court enforced the right to the accrued alimony based on the following reason:

“A provision in a valid divorce decree for alimony or child support, payable in installments, is a final judgment within the full faith and credit clause of the Federal Constitution insofar as accrued installments are concerned unless, by the law of the state where rendered, the decree is subject to modification as to accrued installments at the discretion of the court; and where the decree is final and not subject to such subsequent modification, it must be recognized and enforced without modification of accrued installments in a suit arising in a state other than the one in which the decree was rendered. Barber v. Barber, 21 How. 582, 16 L. Ed. 226; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A., N.S., 1068; 157 A.L.R. 170.

After the Florida Supreme Court had answered the questions of the United States Supreme Court in the Aldrich case, the latter, in its final disposition of the case, concluded with the following:

“Given the answers of the Florida court, it becomes plain that the judgment of the Supreme Court of Appeals of West Virginia, based as it was on a misapprehension regarding the law of a sister State, cannot stand. * * * That West Virginia must give the decree of alimony as broad a scope as that it has in Florida is clear, see Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, and is questioned neither by the Supreme Court of Appeals of West Virginia nor by respondents.” 378 U.S. at 543, 84 S.Ct. at 1689, 12 L.Ed.2d at 1023.

Clearly, in view of the foregoing pronouncements of the United States Supreme Court and this court, plaintiff wife has a cause of action which this court is bound to enforce if the alimony which has accrued to date is not subject to modification retrospectively. The law of Florida establishes beyond doubt that once alimony payments have accrued, the right to those payments vests absolutely in the wife and cannot be modified by the courts.

In English v. English, 117 So.2d 559, 561, 562 (Fla.App.1960), the court said:

“ * * * Those amounts of alimony which were in default and accrued at the time of the hearing on the rule to show cause were vested obligations amounting to property rights of which the wife could not be deprived without due process of law. Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205, 208.”

In Goff v. Goff, 151 So.2d 294 (Fla.App.1963), the court in discussing a lower court order modifying an alimony decree said the following:

“The quoted portion of the order appealed has two additional aspects. First, it modifies the decree of divorce which had become final and upon which no petition for rehearing was pending. Second, it reduces the indebtedness already accrued to the appellant-wife under the terms of the final decree. The chancellor was without jurisdiction, where no pleading directed to modification was filed, to summarily change the provisions of a decree which had become final. Cortina v. Cortina, Fla. 1957, 98 So.2d 334; Taylor v. Taylor, Fla.App.1962, 143 So.2d 516.
“It is also true that the chancellor may not reduce the amount already due for alimony and child support after these sums have become due and payable. He may refuse to enforce sums due by equitable process; but the sums remain due and if judgment is requested, they form an adequate basis for the entry of a judgment enforceable at law. Robinson v. Robinson, 154 Fla. 464, 18 So.2d 29. See Brenske v. Brenske, Fla.App.1963, 151 So.2d 58.”

From the statements of law in the foregoing cases we conclude that the plaintiff has a right to the amount of alimony which has accrued since the death of her husband. It is enforceable under the laws of Florida as a charge against his estate.

Sec. 65:15, Fla.Stat. (1963) FSA, after providing a method for either husband or wife to obtain a decree modifying the agreement or judgment for the payment of alimony, then provides (if there has been a modification) as follows:

"Thereafter the husband shall pay and be liable to pay the amount of separate support, maintenance or alimony directed in such order and judgment, and no other or further amount, and such agreement, or such decree, for the purpose of all actions or proceedings of every nature and wherever instituted, whether within or without this state, shall he deemed to be, and shall be, modified accordingly, and it shall be unlawful to commence, or cause to be commenced as party, or attorney, or agent, or othewise, in behalf of either party in any court any action or proceeding othewise than as herein provided, nor shall any court have jurisdiction to entertain any action or proceeding otherwise than as herein provided to enforce the recovery of separate support, maintenance or alimony otherwise than pursuant to such order and judgment.” (Emphasis added.)

There remains the problem of what the court should do as to that part of the alimony which has not yet accrued. Under the Florida statute, either party has the right to seek modification of the decree or agreement. Moreover, the courts of that state have recognized the right of the executor of the deceased party to seek the modification. Johnson v. Every, supra. But the executor has not done that here; . rather he has filed an exception of no cause or right of action based on the contention that the alimony ceased on the death of the husband, a contention which I think is untenable. Until such time as the executor seeks a modification by proper pleading the monthly payments continue to accrue and are executory.

There should be no difficulty in upholding the power of our courts to entertain an application for modification of the award. The executor is empowered to act only in this State. Plaintiff has sought the aid of our courts in pursuing her rights to the alimony. If she is to be heard to contend that the jurisdiction of the Louisiana court is sufficient to permit her to enforce her rights, she should not be heard to complain if our courts also hear an application for modification which the executor might file. In considering modification our courts should follow well-established principles of equity and take into account the changes in circumstances resulting from the husband’s death and the fact that the wile may now have other means of support.

I concur in the views of the majority that the administration of the husband’s estate cannot be kept open indefinitely in order to continue to make weekly payments. This poses no problem, however, for it is within the authority and right of the executor to-bring an appropriate action, seeking a decree for a terminal lump-sum payment as. the equities of the case demand. The move is his, not that of the wife, to modify or terminate the obligation.

It seems obvious that the statute contemplates enforcement of the decree (either as originally drafted or as modified) in other states. This, no doubt, stems from the fact that parties often remove to other states, and the resulting inability to effect citation and jurisdiction over the person and his property would, in some cases, defeat the purpose of the law. The case before us is an example of just such a situation. Here it seems from the foregoing majority opinions, the right of the plaintiff wife to seek enforcement of the agreement or judgment in Florida is not questioned. But the fact that the husband is now dead and his property is being administered in succession proceedings in this State leaves the wife without an effective remedy in Florida.

It is my opinion that a cause of action-has been shown and that the wife is entitled to the amount of alimony which has. accrued, and the exception of no cause or right of action should be overruled.

Rehearing denied.

BARNETTE, J., is of the opinion a re~ hearing should be granted. 
      
      . Aldrich v. Aldrich, 147 W.Va. 269, 127 S.E.2d 385 (1962) (decision of the West Virgina Supreme Court of Appeals); 375 U.S. 249, 84 S.Ct. 305, 11 L.Ed.2d 304 (1963) (certification to the Supreme Court of Florida by the United States Supreme Court); 163 So.2d 276 (Fla.1964) (response to the questions certified); 378 U.S. 540, 84 S.Ct. 1687, 12 L.Ed.2d 1020 (1964) (remand to the West Virginia Supreme Court of Appeals).
     
      
      . 93 So.2d at 392.
     