Braffett v. Braffett , 308 Mich. 506 ( 1944 )

I concur in affirmance for the reasons stated herein.

This is a claim against an estate now in probate court and the probate court has original jurisdiction over it. Act No. 288, chap. 8, Pub. Acts 1939 (probate code) (Comp. Laws Supp. 1940, § 16289-8 [1] et seq., Stat. Ann. 1943 Rev. § 27.3178 [411] etseq.). It is not within the province of a court of equity to allow or disallow claims against the estates of deceased persons, especially after the subject has been entered upon by the probate court. In re Estate of Jeffers, 272 Mich. 127. In general, this is also true as to contingent claims against the estate of a deceased person. Probate code, supra, chap. 8, § 25 (Comp. Laws Supp. 1940, § 16289-8 [25], Stat. Ann. 1943 Rev. § 27.3178 [435]). There is an exception as to the finality of allowing a contingent claim for future alimony, as will be noted later herein. Appellant Grace K. Braffett's claim for $1,350 accrued alimony stands unmodified and unchanged by the circuit court in chancery which has jurisdiction over the divorce decree now in question. A similar situation was before this court in Martin v. Thison's Estate, 153 Mich. 516 (18 L.R.A. [N.S.] 257, 126 Am. St. Rep. 537), where a claim was filed in probate court for accrued alimony and this court held (syllabus):

"An award of alimony is a valid claim against the estate of claimant's divorced husband, deceased, for the time elapsing between the date of the decree and the subsequent remarriage of claimant, where decedent in his lifetime took no steps for a modification of the award."

In that case in affirming the judgment of the circuit court for the claimant, the court said:

"It will be observed that the statute refers to `all claims and demands of all persons against the deceased.' We think it very clear that the decree obtained by the claimant constituted a claim or demand against the deceased. As the defendant did not seek to have it 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 appellant's claim for $1,350 for accrued alimony has been properly allowed in the probate court as a claim against the estate. No appeal or cross-appeal from this allowance has been taken either by the claimant or the estate. It must stand as a claim allowed. But Grace K. Braffett insists that the circuit court should have allowed her contingent claim for $125 per month "so long as she lives and does not remarry;" and appeals from that part of the order of the circuit court which provides:

"It is further ordered, adjudged and decreed that the contingent claim filed by said claimant against the said estate for alimony subsequent to the decedent's death is a matter to be determined solely by the circuit court in chancery, which retains jurisdiction, and that the estate be held open and sufficient funds retained therein to safeguard the claim, in the event that the circuit court in chancery should decree that said estate is liable to claimant for alimony payments subsequent to decedent's death."

She argues:

"That the judgment of the circuit court covering her claim from the date of the death of John W. Braffett be reversed and that a judgment be entered in her favor on said claim for the sum of $125 per month for her natural life unless she remarries and that said cause be remanded to the circuit court for Oakland county with directions to enter the same."

We are not in accord with her claim in that regard. While the allowance of her accrued and liquidated claim against the estate for $1,350 was properly allowed, and now stands unappealed, it is still within the province of the circuit court in chancery which has jurisdiction in her divorce case to change or modify its decree for payment of alimony "so long as she lives and does not remarry."

"Equity has jurisdiction to modify a decree of divorce awarding alimony 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. 3 Comp. Laws (1897), §§ 8638-8641." Pingree v.Pingree (syllabus), 170 Mich. 36.

See, also, Creyts v. Creyts, 143 Mich. 375 (114 Am. St. Rep. 656).

The circuit court on the appeal from the probate court held that appellant's claim for alimony subsequent to the decedent's death must stand as a contingent claim against the estate, subject to the jurisdiction of the circuit court in chancery in the divorce case, and that the estate in probate court be held open and sufficient funds retained to safeguard the contingent claim. Any further action to change or modify the chancery decree which may affect the contingent claim must come from the circuit court in chancery in the divorce case.

The judgment should be affirmed, with costs to appellee.

NORTH, C.J., and STARR, and BUTZEL, JJ., concurred with BOYLES, J.