Ervin's Estate, In re

• Decision Date: 01 July 1968
• Citation: 243 A.2d 420,430 Pa. 431
• Court: Pennsylvania Supreme Court
• Parties: In re ESTATE of Kenneth D. ERVIN. Appeal of Marybeth G. ERVIN.

Page 420

243 A.2d 420

430 Pa. 431

In re ESTATE of Kenneth D. ERVIN Appeal of Marybeth G. ERVIN.

Supreme Court of Pennsylvania.

July 1, 1968.

Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, Norristown, for appellant.

J. Brooke Aker, Arthur W. Bean, Norristown, for appellee Elizabeth G. Ervin.

Before BELL C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal from the decree of the Orphans' Court of Montgomery County, dismissing exceptions to the adjudication. The issue presented is a very narrow one: 'Does Paragraph 10 of the November 8, 1959 agreement between appellant, Marybeth G. Ervin, and decedent, Kenneth D. Ervin, represent an obligation of the estate to make annual payments, or does the obligation terminate at Kenneth Ervin's death?' ¹

On November 8, 1959, decedent and appellant, then his wife, executed an agreement which was supplemented by a second agreement dated November 18, 1959. Subsequently the parties were divorced and the decedent remarried Elizabeth G. Ervin, who became executrix of his estate. The crucial paragraph is Paragraph 10 of the November 8 agreement, which provides:

'10. Husband agrees to pay to Wife for support and maintenance and as alimony, the sum of ten thousand dollars per year, such sum to be paid in monthly payments of $833.33. Such payments shall be regular and periodic, the first payment to be made on November 1, 1959 and to continue until November 1, 1963. On and after November 1, 1963 said annual payments to Wife for support and maintenance and as alimony, shall be reduced to seventy-seven hundred and fifty dollars ($7750.00), which shall be paid in regular periodic monthly payments of $645.84, which payments shall continue until April 1, 1968. On and after April 1, 1968 said annual payments to Wife for support and maintenance and as alimony, shall be reduced to $5500.00 which shall be paid in regular periodic monthly payments of $458.33. It is further agreed between the parties that the aforesaid sums shall be paid to Wife in the amounts and at the times designated until her death or prior remarriage, at which time Husband's obligation to pay any amounts to her shall cease and determine.'

The facts being agreed to, the only issue was the interpretation of this clause. The court below held that the obligations of decedent ceased at his death. We conclude that the Orphans' Court erred in its interpretation of the agreement.

In the first place, the words of Paragraph 10 itself indicate an intention that the payments continue after decedent's death. The express words of the agreement state that the sums should be paid to appellant 'until her death or prior remarriage.' In Huffman v. Huffman, 311 Pa. 123, 166 A. 570 (1933), this Court faced a similar situation. In a separation agreement, the husband agreed to pay $30.00 per month to the wife for the support of each of two children, until each child became self-supporting. Subsequently, the wife obtained a divorce and the husband died. When the ex-wife sued the husband's estate, the administratrix claimed that the obligation terminated at the husband's death. We held: 'It is clear beyond question that the agreement has not been fully complied with, since the children are not, as yet, self-supporting. * * * It is * * * idle to say that the agreement was personal between the plaintiff and testator, or that it was intended to terminate at his death. There is nothing in the agreement, or in the surroundings of the parties at the time they made it, from which either conclusion can properly be drawn. As we said in Foundation & Construction Co. v. Franklin Trust Co., et al., 307 Pa. 10, 15, 160 A. 711, 712: 'The standard for the interpretation of words is their natural meaning to the parties who have contracted at the time and place where the contract is made, considering all the circumstances surrounding it: McMillin v. Titus, 222 Pa. 500, 72 A. 240. * * * Words are to be construed according to their primary acceptation unless, from the context of the instrument and the intention of the parties to be collected from it, they appear to be used in a different sense.' By his agreement, testator agree to pay the specified sums for the support and maintenance of his minor children, until they became self-supporting, and there is no other language therein which in any way otherwise limits or fixes the time during which the payments are to be made.' ² Here decedent agreed to pay until appellant's death or marriage and no other language limits the time during which payments are to be made. See also Welsh's Estate, 61 Pa.Dist. & Co. 47 (1947).

Moreover, any possible ambiguity in Paragraph 10 itself as to whether payments continue after the husband's death can be resolved by considering other portions of the agreement. Paragraph 11 provides, in relevant part:

'11. Husband further agrees to pay to Wife for her support and maintenance and as alimony, thirty-five per cent of two-fifths of the net income, as and when payable, under a certain deed of trust created by J. Herbert Ervin and Mabel K. Ervin, his Wife, dated December 26, 1935, * * *. It is further understood and agreed between Husband and Wife that Husband agrees to pay this amount * * * until the death or prior remarriage of Wife or until the death of Husband, whichever shall first occur. * * *'

Here the parties specifically provided that payments would terminate at the husband's death. They recognized the problem that might arise and provided for termination. The failure to make the same provision in Paragraph 10 is a strong indication that the parties intended payments to continue after the husband's death.

Paragraph 4 of the Supplemental Agreement also provides an indication that payments should continue to be made after the husband's death. That Paragraph provides:

'4. In the event that Husband should become totally or partially disabled from practicing medicine, by reason of illness or accident or other cause beyond his control, and, by reason thereof, the income received by him from the practice of medicine should be reduced, then and in such event, Wife agrees that the amounts to which she is entitled under paragraph 10 of the agreement to which this is a supplement, shall become reduced in the same proportion as Husband's earned income is reduced from what it was the year previous to such illness, accident or other cause beyond his control,...