Daly v. Daly

HENRIOD, Justice:

Appeal from a judgment in a divorce action. Affirmed in part and reversed in part.

Plaintiff, Leah M. Daly, Executrix of Mrs. Eva Dean Daly, the deceased wife of defendant, which latter was the original plaintiff that started this divorce action, was made such plaintiff by order of substitution entered by the trial court. Such substitution was error in our opinion and was vulnerable to a motion to vacate.¹ Although we think the error may have been dispositive of this case procedurally, we do not concern ourselves with such issue, since no one pressed it, but think the solution to this particular case may be found in what follows, which we believe will eliminate considerable procedural circumlocution that ultimately would arrive at the same result anyway.

Eva Dean Daly, wife of defendant for many, many years, sued him for divorce and obtained an interlocutory decree to become final in three months. The decree awarded her the home, owned jointly by the parties, subject to an $8,000 equitable lien in favor of defendant. Eva died midway of the three-month period, and Leah, her Executor, was made plaintiff, as reflected above. She, as ostensible plaintiff, was awarded, subject to a lien in defendant for $8,000, the fee title to the property, which naming of Leah as transferee we consider in error, since such a representative under the facts of this case, it would seem, cannot be made the grantee. This, so far at least as one reason is concerned — that the real property vests in the devisees under the will² or in the heirs with possession in the representative, subject to probate,³ and encumbrances.⁴

This brings us to In re Harper’s Estate,⁵ decided by this court in 1954, which represents the law in this State at the time Eva died. That case, in a unanimous opinion, in which one of our present members participated, in clear enough language, stated the governing rule that:

When the death of one of the parties occurs after the entry of a divorce decree and before the decree is final the decree becomes ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final in the same manner and at the same time as one between living persons.

Such language fully would warrant awarding the home to Eva, (or her devi-sees or heirs), in case of her death during the interlocutory period, and is reason enough to affirm the trial court’s award to the plaintiff’s side of this case. This we do, subject to an amendment to the decree, which we also order, awarding the home to the devisee or devisees or the heirs of Eva Dean Daly, deceased, as provided in the statutes mentioned, subject to the lien mentioned, and subject to proper administration of her estate via the probate side of the court.⁶

At the same time we affirm the award, we hereby reverse prospectively that part of the decision in In re Harper’s Estate, supra, having to do with determination of property rights, and hereby order and adjudge that when the death of one or both of the parties occurs after the entry of a divorce decree and before the decree is final, the decree becomes ineffective and is deemed and held to be of no further force or effect.⁷

CALLISTER, C. J., and TUCKETT, J., concur.

1 . Price v. Hanson, 60 Utah 29, 37, 206 P. 272 (1922) : “A party seeking to intervene . . . should make it appear that he would have been at least a proper party to the action when it was commenced and that he would have been entitled to the relief he seeks in a separate action.” See also In re Harper’s Est., 1 Utah 2d 296, 265 P.2d 1005 (1954) ; (an independent action).

2 . Title 74-1-36, Utah Code Annotated 1953.

3 . Title 74- 4- 2, Utah Code Annotated 1953.

4 . At best the decree should have awarded the property to Eva’s devisees, or to her lawful heirs, if the property was not disposed of by will, subject to probate including rights of creditors, taxes, liens, (including the equitable lien in this case), etc.

5 . Footnote 1, supra.

6 . The trial should determine the fact, whether the property was the subject of a testamentary disposition, or intestacy.

7 . We do this for a number of reasons, among which are: 1) That the Harper decision was impractical and unreasonable, in splitting an action to nullify its basic and most important aspect — that of divorce, but sanctify property rights which without the marriage, never would have existed. Besides such an illogical result since Harper, the legislature, under Title 30-3-7, U.C.A.1953, emasculates the interlocutory appeal provision, if the court orders a shorter or no waiting period at all.