Mosey v Mosey and Barker

JurisdictionEngland & Wales
Date1955
CourtProbate, Divorce and Admiralty Division
[PROBATE, ETC., DIVISION.] MOSEY v. MOSEY AND BARKER. 1955 April 4, 5, 29. Sachs J.

Husband and Wife - Maintenance - High Court - Divorce - Death of husband - Order for secured provision for wife and child - Death of husband before real property agreed - Order enforceable against executor - Executor not entitled to vary - Law Reform (Miscellaneous Provisions) Act, 1934 (24 & 25 Geo. 5, c. 41), s. 1 (1). Matrimonial Causes Act, 1950 (14 Geo. 6, c. 25), ss. 19, 26, 28. - Death.

On the dissolution of a marriage an order was made securing an annual sum for the maintenance of the wife for her life

“upon part of the real property [of the husband] to be agreed or to be referred to the district registrar in default of agreement”

and further securing, in the same terms, a gross sum to be secured to her for the benefit of the child of the marriage

The husband having died before the security had been specified the wife applied to enforce the order against the sole executor of the husband who sought by a cross-application to vary the order by deleting so much of it as related to the gross sum to be secured for the child of the marriage:—

Held, that as the order laid down what was to be done and how it was to be done the maxim certum est quod certum reddi potest applied thus creating an enforceable claim to which section 1 (1) of the Law Reform (Miscellaneous Provisions) Act, 1934, was applicable.

Richards v. Richards and Flockton [1942] P. 68n. and Waterhouse v. Waterhouse [1893] P. 284 applied; Hyde v. Hyde [1948] P. 198; 64 T.L.R. 105; [1948] 1 All E.R. 362 distinguished.

With regard to the cross-application the right of a wife to apply for the exercise of the court's discretionary powers to grant or increase secured maintenance and the right of a husband's executor similarly to apply to extinguish or diminish that maintenance must stand on an equal footing as constituting claims which could be enforced against or by a personal representative of a deceased spouse by virtue of section 1 (1) of the Law Reform (Miscellaneous Provisions) Act, 1934. Neither of them constituted such claims, and the executor could not, therefore, succeed.

Dipple v. Dipple [1942] P. 65; 58 T.L.R. 141; [1942] 1 All E.R. 234 applied.

Semble. The effect of the words of the order “part of the real property,” taken in conjunction with the fact that the registrar on making the order had before him a list of the husband's real property, was to create a pool of property from which the wife had a right to have a selection made, and thus to operate in equity to give a general charge upon the whole of the real property until the selection had been made.

SUMMONS (adjourned into court).

On December 7, 1951, the wife obtained a decree nisi against the husband on the cross-prayer of her answer on the ground of his adultery and cruelty. On January 25, 1952, the decree was made absolute. On December 23, 1952, Mr. Registrar Grindal Gray, at Scarborough, on the wife's application, made an order under sections 19 and 26 of the Matrimonial Causes Act, 1950, that

“Cecil William Mosey do secure to Irene May Mosey for her life, until further order, as from the date of the decree absolute herein, to wit, the 25th day of January, 1952, the annual sum of £300 upon part of the real property of the said Cecil William Mosey to be agreed or to be referred to the district registrar in default of agreement and that in default of agreement between the parties as to the form of deed it be referred to conveyancing counsel of the High Court to settle the necessary deed or deeds.

“And it is further ordered that the said petitioner do secure to the said respondent the gross sum of £750 for the benefit of Michael Sydenham Mosey the child of the marriage on part of the real property of the said petitioner to be agreed or referred to the district registrar in default of agreement and that in default of agreement between the parties as to the form of deed it be referred to conveyancing counsel of the High Court to settle the necessary deed or deeds.

“And it is further ordered that the said petitioner do pay or cause to be paid to the said respondent until the said Michael Sydenham Mosey shall attain the age of twenty-one years or until further order as from the date of decree absolute maintenance at and after the rate of £80 per annum less tax such sum to be payable monthly …”

Between January 14, 1953, and March 25, 1953, correspondence passed between the solicitors of the respective parties with a view to agreeing which properties of the husband should be selected to constitute the security, but they failed to reach agreement. On March 31, 1953, the husband died. The net value of his estate as sworn for probate was £44,418, including real estate sworn at £25,581.

On June 9, 1954, the wife issued a summons applying to enforce the order of December 23, 1952, against the sole executor of the husband. The application was contested and by a cross-application contained in a summons of July 27, 1954, the executor sought a modification of the order by omitting the provision made for the child.

Ifor Lloyd Q.C. and Geoffrey Crispin for the wife.

Viscount Hailsham Q.C. and Norman Stogdon for the executor.

Cur. adv. vult.

SACHS J., reading his judgment, referred to the nature of the order and to the facts, and continued: The question raised by the application is whether the order can be enforced against the sole executor of the husband or whether the death of the husband results in the wife having as from that date no rights under the order.

There are two decisions since the enactment of the Law Reform (Miscellaneous Provisions) Act, 1934,F1 which touch closely on the above question. The first is Dipple v. Dipple,F2 where Hodson J. held that the right of a wife to apply for an order under section 190 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925, was not a “cause of action” within section 1 (1) of the Act of 1934; accordingly where before the death of the husband the wife had made an application under section 190 (1), but had not reached the stage of obtaining an order, her claim could not survive his death.

In that case Hodson J. distinguished “the right to ask the court to exercise discretionary powers” from “having an enforceable claim.” He instanced an order for costs made against a party in his lifetime as constituting an enforceable claim kept alive by the Act of 1934 even where taxation had not yet taken place, and in this behalf referred to his decision in Richards v. Richards and Flockton.F3 Formerly the order for costs would have ceased to have effect on the death of a party to the proceedings: Coleman v. Coleman and Simpson.F4

The second decision was that of Barnard J. in Hyde v. Hyde.F5 There an order had been made for an annual sum to be secured “upon security to be agreed” and before the death of the husband agreement had been reached as to the security to be provided, but no deed had been executed. Mr. Upjohn Q.C., having established that by virtue of the order an equitable charge arose as soon as the security was agreed, Barnard J. rested his decision on the fact that the wife had acquired a charge on agreed specific property and directed the executors to execute the necessary deeds. He thus had no need to consider and did not refer to that branch of Mr. Upjohn's argument that was founded on Richards v. Richards and Flockton.F6

Lord Hailsham's main and much pressed argument was that the court has here no jurisdiction to deal with a matter arising in a divorce suit after the death of one of the parties...

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