180 S.E. 772 | W. Va. | 1935
Lead Opinion
This suit involves a property settlement between husband and wife in contemplation of divorce in a pending cause.
Plaintiff, Sallie May Jennings, and Dr. O. H. Jennings were married March 17, 1917. Of this union two sons were born, Olin Henry on January 25, 1918, and William James August 25, 1919. Dr. Jennings having sued for divorce, a writing designated "Deed of Trust," was entered into January 9, 1932, by and between himself, party of the first part, Wells Goodykoontz and George W. Crawford, parties of the second part, and Mrs. Jennings, party of the third part. The instrument recites that "O. H. Jennings and Sallie May Jennings are man and wife, living separate and apart;" that a divorce proceeding, "styled O. H. Jennings vs. Sallie May Jennings," is pending in the circuit court of Mingo County, West Virginia; and that the "parties are desirous of settling their property rights as between themselves without the necessity of an adjudication thereon in said cause."
In consideration of the premises and $1.00 in hand paid, the party of the first part and the party of the third part agreed as follows: (1) that the party of the first part will pay unto party of the third part "for her sole and exclusive use and benefit as and for her support and maintenance, and for so longas she may live, or until she shall again be married," the sum of $100.00 per month in two equal installments on the *411 first and fifteenth days thereof; (2) that in the event of an absolute divorce between them and her re-marriage or death, the monthly payments to be made to her shall thereafter be "used to help educate the two children," Olin Henry and William James, until they shall have arrived at the age of twenty-one years; (3) that she shall retain as her own all personal property in her possession, including jewelry, personal belongings, household and kitchen furniture, cooking utensils, piano, "and other items of like character." There was also "reserved" by the wife her contingent right of dower in the real estate and her contingent statutory interest in the personal property then owned by the husband. Dr. Jennings, by the writing, conveyed to the parties of the second part an undivided one-half interest in valuable real estate in Williamson, West Virginia, to secure the payment of the bi-monthly installments. It was also provided in the instrument that upon default in the payment of any of the installments the parties of the second part shall, at the request of Mrs. Jennings, proceed to sell the property conveyed for the benefit of the trust.
On the day of the execution of the contract a decree was entered in the divorce proceeding, granting the husband a divorce from bed and board and the custody of the children; and reciting that "the matter of maintenance and alimony for the defendant has been settled and agreed upon out of court by the parties hereto, as set forth in a writing called a deed of trust, bearing date the 9th day of January, 1932, * * * which writing the court has seen, and to which he finds no reason for objection."
Dr. Jennings died, testate, March 24, 1934. By his last will and testament, dated August 27, 1928, he bequeathed $1,000.00 to his mother, and devised and bequeathed the remainder of his estate to the two children and nominated the First National Bank of Williamson executor under his will and trustee of the estate devised and bequeathed to the children, until they shall have obtained the age of twenty-five years. This suit was instituted in August, 1934, by the widow against the executor to recover alleged arrears under the *412 contract of settlement accruing after the death of Dr. Jennings.
Plaintiff having recovered in the circuit court, defendant contends: (1) that the suit is not cognizable in equity; (2) that the payments under the agreement, correctly interpreted, terminated at the death of Dr. Jennings; (3) that the court may change the decree or contract by reducing or cutting off the payments; (4) that the contract is without consideration and against public policy.
1. As the payments, if continuing, are in the nature of an annuity, a court of equity has jurisdiction for their enforcement. 3 C. J. 219; Fleming v. Peterson,
2. Does the agreement, fairly interpreted, require the payment of the installments "for so long as she (Mrs. Jennings) may live, or until she shall again be married," as stated in the writing? or shall this language of the contract be interpreted, as the executor asserts, to read "for so long as they (Dr. and Mrs. Jennings) may live, and she shall not become married to another"? As was stated in Storey v. Storey,
"In Wilson v. Hinman,
"Upon the authority of that decision, it has been held that, when a decree of a court of this state fixed alimony at a certain amount, pursuant to the agreement of the parties, to continue during the life of the wife, the alimony did not cease upon the death of the husband, but could be collected from his estate during the life of the wife. Whitney v. Whitney Elevator Warehouse Co., (C.C.A.) 183 F. 678, certiorari denied
In support of its contention, that the contract contemplated cessation of payments to the wife at the death of the husband, the bank relies especially upon Parsons v. Parsons,
In the light of the apparent financial ability and willingness of Dr. Jennings to provide suitable education for the children, the provision in the contract for their benefit in the event of an absolute divorce between the parties and the death or remarriage of the wife would seem to contemplate a time beyond the death of the father when the children could not look to him for support.
It is argued that the contract should not be construed according to the contention of the plaintiff because it secured to the widow the same rights of dower and statutory interests in the property owned by her husband at the time of its execution that she would have received at his death had the divorce from bed and board not been granted. As the contract merely "reserved" to Mrs. Jennings what she would have been entitled to under the law, the provision was ineffectual to prevent the decree of divorce from depriving her of her contingent right of dower and statutory interest in the property of her husband under section 18, article 2, chapter 48, Code 1931. She now waives all claims for dower or statutory interest in the estate. Mrs. Jennings and her sons, capable and promising boys, are living together in apparent peace and harmony.
Counsel for plaintiff, in their brief, say: "If it was intended she should have the monthly payments after his demise, how easy and natural it would have been to say that in event of his death before her death or remarriage, the monthly payments thereafter to accrue would be and become a charge against his estate." It might be more pertinent to *416 inquire, if it was intended that the monthly payments should continue only during their joint lives, why did the parties not so stipulate?
3. As the court did not, by its decree in the divorce proceeding, undertake to fix alimony, but left the settlement of the property rights to the parties, there is no adjudication to be revised or reversed.
4. The contention that the contract was without consideration and against public policy cannot be sustained. "While it is true that husband and wife cannot lawfully enter into an agreement for a divorce, yet it is well settled that the amount of alimony which the husband is to pay to the wife, and the terms of the payment, and the length of time during which such payment is to continue, may be all arranged between them by consent." Storey v. Storey, cited; 13 R. C. L. 1355.
The decree of the circuit court is, therefore, affirmed.
Affirmed.
Concurrence Opinion
Counsel for appellants base their contention entirely on what Mrs. Jennings was or was not, or would or would not, be entitled to under the law. The bare fact that the contract was made — under the supervision of eminent counsel — demonstrates that the parties desired an arrangement different from that which would be made by the law. Such contracts, when fairly entered into and when not prejudicial to the rights of third parties, are "always" upheld. Ehler v. Ehler,
It is also said that Dr. Jennings did not expressly attempt to burden his estate with this contract. He placed the property involved in this litigation in trust to secure the contract. The law provides no method for burdening property more effective than the one he adopted.
Dissenting Opinion
The husband successfully prosecuted a suit for divorce against his wife. The contract was executed pending final decree. In such circumstances, it is difficult to understand why she should be placed in a more favored position than a wife against whom there is no cause for divorce. Of course, if the contract, beyond peradventure, created such anomalous situation, the meaning would have to be carried out, but I submit that the underlying purpose of the contract, as appears from the body thereof, was not to create an anomaly. However dutiful a wife may have been, the law does not award her a fixed income from her deceased husband's estate.
Analysis of the instant matter should start with the fundamental and familiar postulate that alimony is money required by law to be paid by a derelict husband for the support and maintenance of the wife who has divorced him. The principle is grounded on the legal concept that a husband whose shortcomings have caused disruption of the marriage should not be permitted to escape his moral and legal duty of providing reasonable support for his wife. Alimony ordinarily terminates with the husband's death. These basic propositions must be deemed to have been known and understood *418 by the parties and their counsel when the contract was executed. From such background, examination must be made of the phraseology they employed.
Here is the vital provision: "That the party of the first part (Dr. Jennings) will pay unto the party of the third part (Mrs. Jennings), for the sole and exclusive use and benefit of the party of the third part, as and for her support and maintenance, and for so long as she may live, or until she shall again be married, as provided in the paragraph next following, the sum of One Hundred ($100.00) Dollars for each and every month, * * *."
Note that Dr. Jennings did not expressly attempt to place any obligation on his estate. The circumstances disclose that his estate could not justly bear such burden. It was purely a personal undertaking. Ex necessitate, it must terminate at his death. He said, in effect, "If I live, I shall pay to my divorced wife one hundred dollars per month as long as she may live." In reality, it was a contract for alimony during their joint lives. He was a man of limited property holdings — insufficient to justify the placing thereon of a burden such as the widow now claims, to the practical exclusion of their children. While he lived and could earn substantial income from the practice of his profession, the obligation he assumed would not seem to be oppressive, otherwise it will absorb his estate.
The view that Dr. Jennings was creating an obligation only for his life is accentuated by the fact that by the contract there is expressly reserved to the wife her contingent right of dower in his real estate and her statutory right to share in the distribution of his personal estate. The plain intent thus seems to have been that she should be paid alimony as long as Dr. Jennings lived, and that she should share in his estate after his death, the alimony then being at an end.
Judge Kenna authorizes me to state that he concurs herein. *419
