Matter of Estate of Gustafson
287 N.W.2d 700
N.D.
1980
Check Treatment

*1 R. In the Matter of the Estate

GUSTAFSON, Deceased. GUSTAFSON, [Respon Claimant

Alice L. Appellant,

dent Below]

v. GUSTAFSON,

Shirley Repre Personal

sentative of the Estate of Earl R. Gus Deceased,

tafson, Respondent [Appel Appellee.

lant Below]

Civ. No. 9662.

Supreme Dakota. Court of North 10,

Jan. 1980. 24,

Rehearing Denied Jan. Dickinson, Keogh,

Robert A. for claimant [respondent appellant. below] Howe, Galloway Gerald D. and Bruce R. Reichert, Howe, Hardy, Galloway Jor-& Dickinson, gensen, respondent [appel- argued appellee; by lant Howe. below] WALLE, VANDE Justice. judg- appeals

Alice L. Gustafson from a County ment entered District Stark July Court on which reversed an County order entered the Stark Court of granting Alice Increased Jurisdiction L. continuing claim estate of Earl R. Gustafson for that had been awarded the district court proceeding. in divorce of the district court is re- versed and is remanded with di- the case rection to affirm the order of the Stark County Court of Increased Jurisdiction. Alice Gustafson and Earl Gustafson were married in were on De- 1940 and divorced divorce, cember 1970. Prior to the entered into a incorporated into agreement which was *2 701 608, agreement pro- rey Storey, v. 125 Ill. judgment of divorce. This 18 N.E. 329 Am.Jur.2d, would (1888); Alice Gustafson receive Separa vided that 24 Divorce and house, car, $5,500 exchange her tion, a for 525. § site, and per $325 interest in a cabin present law, Under North Dakota was to retain alimony. Earl Gustafson decreeing “The effect of a a di that he had his interest farm is to vorce restore the to the state of father his inherited from his interest ”. persons, unmarried . . 14-05- Sec. Ford, property was di- Parkway Inc. The 02, Thus N.D.C.C. divorce pursuant vided give up gained through they mar- Following began alimony. the di- paying riage spouses. in the of share estate their Gustafson, vorce, who Shirley Earl married longer surviving, spouse no receives by personal representative now serves as the a of the decedent’s estate law share that of the estate. supersede alimony payments, would so that alimony pay- made Earl Gustafson for denying the common-law rationale ali- required until he died. No alimo- ments as mony after the death of husband no his ny payments have been made since longer exists. Alice filed a claim death. estate, against alimony payments Earl Gustafson’s which was Whether or not must probated County in the Stark Court being upon the husband’s death terminate under Following a Increased Jurisdiction. present North Dakota law was considered hearing, County Court entered an Estate, Stark v. in Stoutland Stoutland’s 103 directing alimony payments order that (N.D.1960). There, N.W.2d 286 this court continuing charge against as a made held: estate. “Where a divorce decree directs the Gustafson, pay monthly alimony to

Shirley personal represent- defendant to ative, county appealed plaintiff provides this order of the ‘said County to the district court. court Stark until continue interpreted death,’ district court plaintiff qualifica- or her without alimony payments that tion, divorce mean payments accruing after the would cease at Earl Gustafson’s death and payable death of the defendant become county reversed the order of the court they out of estate of defendant as continuing granting a Alice Gustafson ¶ Syllabus, 4.1 become due.” for claim Earl Gustafson’s estate reaching pay- the conclusion that the alimony. upon the hus- ments would not terminate appeals now from this Alice Gustafson death, this was mindful of the band’s judgment of the district court. general rule that in the absence an between the or a statute law, At common the death of the otherwise, providing periodic payments of payment put husband an end terminate the husband’s alimony in a a mensa et thoro. The divorce as to the death where the decree silent for this divorce a mensa reason was payments. In re Roberts’ duration of those fully mar et thoro did not terminate the Estate, 1, (1964); 458 257 Iowa 131 N.W.2d provided riage relationship, but for a North, v. 339 Mo. 100 S.W.2d North wife separation from bed and board. The (1936); Am.Jur.2d, Sep- Divorce and 24 in her still retained all her marital interests aration, But in Stoutland this 642-643. husband’s so that at his death §§ statutory authority in Section usually larg was court found succeeded 14-0524, N.D.R.C.1943,2 allowing provision er received from estate. Sto pay alimony pay- present instead. Sec. 14-05- 1. involves the ordered Because action 24, N.D.C.C.; Stoutland, supra. alimony by a husband to wife we However, our present in those terms. discuss issue This is the same as the Sec- statute (cid:127) 14-05-24, N.D.C.C., been provides: would be the same had wife decision which tion during legislative authority pro- the life of In view of the payment continuance 14-0524, N.D.R.C.1943, vided Section or not whether recipient decree, interpretation of and this court’s making payments was alive. charged with it was concluded in that the Stoutland to consider whether or The court went on to receive did not termi- provided indeed decree had not the divorce nate of the former husband. *3 alimony the after payment for the hand, provision relating In the case at in de- by the inclusion of the husband part property-settle- to was of a payments “said to contin- phrase cree of the agreement ment entered into Earl Gus- plaintiff or ue until the tafson and Alice that was incor- considering phrase, this her death.” In porated into the of divorce. This jurisdic- cases from several court discussed agreement provided, part: in language was inter- tions in which similar “(6) the Plaintiff as her share of That Farrington case of v. Boston preted. The personal property and real of the Co., 280 Mass. Deposit & Trust Safe marriage has exclusive title to the followr (1932), regarded being was as 181 N.E. 779 ing: point. interpreting directly in language court stated: the Massachusetts “(d) pay That the Defendant to the bar, judge “In the case at if the intended Plaintiff the sum of Three Hundred with the payments were to cease Twenty-five ($325.00) per Dollars libellee, it would be assumed death of the alimony payable month as as of Janu- included in the that he would not have ary day and the first of each phrase payments that the were decree a thereafter, alimony pay- said life,’ ‘during term of her to be made ments to terminate the remar- that in the for could not be contended it riage or death of the Plaintiff or until they would contin phrase absence of such the further Order of the Court.” death, after the libellant’s and hence ue The district court considered the award of be to show that the its function can part property to be of the settle- during payments are to continue the li- ment, agree. “alimony” and we The term regardless life of the death of bellant’s was not used in its technical sense in the language of the decree the libellee. property-settlement agreement, but instead indicates an intent to bind libellee’s payments referred to cash made to Alice Many are made where estate. contracts part prop- Gustafson as of her share of the predecessor is named without ref in the erty marriage. provi- of the Because the assigns, yet to or it could not

erence heirs alimony payments sion for to Alice Gustaf- - in reasonably be contended that case of part son was of the agreement parties, would not be bound. his death his estate entered into we interpretation look to the judge entering in rules of contract The intention of 9-07, N.D.C.C., Chapter to found deter- present decree in the case was to allow parties mine whether or not the intended at during the li- to continue property-settlement agreement the time the purpose by This reason of bellant’s life. was reached to have the can be carried the death of the libellee cease Earl Gustafson’s death. binding his estate.” 280 only by out 9-07-04, N.D.C.C., 126-127, provides: Mass. at 181 N.E. at 781. Section may just, having regard seem to cir- granted, the court shall “When a divorce parties respectively. cumstances equitable of the real make such and seem the distribution modify may may parties personal property court from time to time its orders as may compel respects.” just proper, either of of in these and and provide “alimony” “support” to for the maintenance The terms have the marriage, meaning purpose and to make such the children of the suitable allowances to the other same See, for the of this statute . sup- Am.Jur.2d, g., supra; for e. port during period Separation, life shorter as to or Divorce and § paragraph writing, property-settle- a contract is reduced to “When qualified by para- was is to as- the intention (5) writing possi- if of that same graphs alone certained from however, provi- ble, subject, incorporated to the other as of divorce. provided: chapter.” paragraphs These sions of this “(4) That each of said have an The district court did not ascertain bequeath dispose immediate or writing itself, from the parties’ intent respective Will or her interests in parties’ testimony as but allowed belonging any property and all language. We understanding of the hold her, him or from and after the date here- parties’ on Testimony this to be error. of, all of said extends to only if should have been considered intent acquisitions aforesaid future ambig was over set well could unclear so that intent uous and *4 parties either of hereto under this the from the instrument. not be ascertained Agreement. property-settle language The used in the “(5) right That the have no to here agreement under consideration is ment the estate of the other left at his or her unambiguous. and clear right and has no to share in [each] agreement, property-settlement The by estate the other the laws of the of divorce, judgment incorporated as in of succession and that neither of the “said provided that right be has the to the administrator or remarriage or to terminate [were] administratrix or executor or executrix ”. This the Plaintiff . . lan- death of and neither has of the estate of other found in the divorce guage is similar to that right inherit under the Will of the to Stoutland, supra, considered in decree right has party any and neither of other to “payments this held that wherein property of the homestead in the real plain- continue until the other, rights party any has to neither death,” plaintiff’s meant that the tiff or her any in estate the estate or interest of right alimony did not terminate to receive family way by of the other for allowance of her former husband. In with the death inheritance, rights have of they interpretation in line with this court’s persons only and relation to single interpretation supra, and the any other such disinterested each by juris- phrases other placed property mat- regards any to financial Stoutland, we that cited in hold dictions ters.” by parties requires used seeking not to is to after Earl Gustaf- Gustafson payments continue Alice of as a wife would language was share in the estate death. Because the son’s of be under laws suc clear, governed have the district entitled to share it should 9-07-02, cession, any to seeking impinge nor is she interpretation.. N.D. court’s Sec. dispose to his estate way upon right intent is of parties’ That was the C.C. this seeking only the as he saw fit. She is supported by language the settle- also part are alimony payments, which not agreement to the effect that Alice are, part, estate but her alimony, Earl Gustafson’s was to receive the agreed marriage property as things, share of the among other as her share pay parties. these share in marriage property. Her (4) and marriage qualified by paragraphs is not would not ments of the (5) agreement property-settlement contingent upon her former have been against only the es remaining Nastrom v. which concern claims spouse’s alive. See spouse. tate Nastrom, (N.D.1978). former 262 N.W.2d 487 contract, Furthermore, in a in- deny provisions The district court’s decision cluding property-settlement was influenced continuation of give together so as to effect alimony are to be read provision its conclusion that every part if reasonably practicable. of the district court is re- 9-07-06, Sec. N.D.C.C. To read versed and the paragraphs case is remanded with the ' (4) (5) direction that of the Stark County Court of Increased agreement Jurisdiction be as a paragraph limitation on affirmed. (6)(d)of that give does not ef- paragraph.

fect the latter Paragraph ERICKSTAD, J.,C. and PAULSON and specifi- concerned SAND, JJ., concur. cally with alimony payments, para- whereas (4) graphs general are statements PEDERSON, Justice, dissenting. concerning disposition immediate considering Without all of the other theo- and claims practical problems retical and involved in their estates. If there is a conflict between case, this my it is view that when Earl and specific provision general provision and a agreed Alice Gustafson that alimony pay- contract, specific provision in a qualifies ments would terminate when Alice remar- general provision. 31-11-05(25), Sec. died, ried or or when there was a “further N.D.C.C.; 313-314; 17A Contracts C.J.S. §§ Court,” Order of the the termination could Am.Jur.2d, Contracts, § be order of the court when Earl died. The estate obligated should holding view of our to make per $325.00 from payments were in the nature of a property death, Earl’s March until the date settlement, together with this court’s inter- *5 court, order of the July pretation supra, holding paragraphs (4) our property-settle- Gustafsons’ do qualify paragraph not of that we conclude that should not have

ceased Earl Gustafson’s death.