Goodman v. McMillan

• Decision Date: 27 August 1952
• Docket Number: 3 Div. 629
• Citation: 61 So.2d 55,258 Ala. 125
• Parties: GOODMAN et al. v. McMILLAN et al.
• Court: Alabama Supreme Court

Page 55

61 So.2d 55

258 Ala. 125

GOODMAN et al. v. McMILLAN et al.

3 Div. 629.

Supreme Court of Alabama.

Aug. 27, 1952.

Rehearing Denied Nov. 6, 1952.

H. L. Anderton, Birmingham, for appellants.

Hugh M. Caffey, and McMillan, Caffey & McMillan, all of Brewton, for appellees.

SIMPSON, Justice.

The appeal challenges the construction placed by the trial court on two provisions of an irrevocable trust created by an instrument executed March 28, 1929, by the late D. W. McMillan, a wealthy physician of Pensacola, Florida.

The instrument provided that the administration of the trust should be transacted in a court of competent jurisdiction in Escambia County, Alabama. Ed. Leigh McMillan, attorney of Brewton, Alabama, and cousin of trustor, was named the principal trustee and since the execution of the instrument has acted exclusively in that capacity.

The trust provisions under consideration are those designed at the time of the execution of the trust to benefit the trustor's then wife, Florence McMillan, and her daughter, Frances Brodsky, the appellants here, complainants below, who claim its benefits by the bill as last amended.

The instrument in so far as pertinent provided that after the trustor's death 'and during the lives of my wife, Florence McMillan, [and others] * * * all net income and profit, so derived, shall by my said trustee or trustees be paid to the following named persons, in the following amounts, for the following times, and used for the following purposes:

'(a) There shall be paid to my widow, Florence McMillan, the sum of one thousand dollars ($1,000.00) per month so long as she shall live and remain my widow.

* * *

* * *

'(d) In the event that either of my cousins Ed. Leigh McMillan or Malcom McMillan, or any of the family or lineal descendants of either; or either of my stepdaughters, Annette Woods or Frances Brodsky, should during the continuance of this trust, be in want or needy circumstances,--then in any of said events my trustee or trustees shall use and devote so much of said income and profits not otherwise divested as he or they may deem necessary or proper for the support, comfort and wellbeing of those or any of those so in want or in needy circumstances.'

The trial court ruled that the complainants were not entitled to relief. We are in accord with that decree. The two provisions will be discussed in order.

Provision (a)

This section of the instrument sought to make provision during the life of his 'wife', Florence McMillan (now Goodman), so long as she should live and remain his widow. But Florence McMillan was not the trustor's wife at the time of his death in 1936 and therefore never could be his widow. He had previously obtained a divorce from her in 1933 in the chancery court of Escambia County, Florida, on the ground of adultery. That decree was affirmed on appeal by the Supreme Court of Florida, June 25, 1935. See McMillan v. McMillan, 120 Fla. 209, 162 So. 524. So the primary inquiry is whether appellant, after having been divorced from trustor in his lifetime, could take under subdivision (a) of the trust after his death as his widow. Posed in more judicial language, does an estate conditioned and limited to the survivorship of the settlor's wife as his widow vest in her at his death when she was not then his wife by reason of a previous divorce a vinculo between the couple. Clearly, the authorities do not conduce to such a conclusion.

The first guiding rule is well recognized. The intention of the settlor is the law of the trust and if the nature, subject matter and objects are reasonably ascertainable and the scheme not inconsistent with some established rule of law or public policy, that intention must control and the courts will sustain and give it effect. Stariha v. Hagood, 252 Ala. 158, 163, 40 So.2d 85; Thurlow v. Berry, 249 Ala. 597, 32 So.2d 526.

In appraising the intention of the settlor here from the language of the instrument, in the light of ordinary knowledge of human affairs and relationships, none but the naive could believe that it was the intention of the trustor that his unfaithful divorced wife should share in the benefits of the trust under provision (a) as his 'widow' after his death. Unless the instrument clearly imports such an intention, as it does not, the law, as we say, should not operate to that result.

The gift under (a) is not to Florence McMillan, 'a widow,' but to Florence McMillan, 'the widow' of trustor, to continue during her said widowhood. Such a gift imports one because of and in consideration of the marital relation and clearly contemplates the wife to be in lawful wedlock with him at her husband's death. 122 A.L.R. 116, n. 27; 18 A.L.R.2d 712; 35 Am.Jur. 354, par. 251, n. 4; Bell v. Smalley, 45 N.J.Eq. 478, 18 A. 70; Boddington v. Clairat, L.R. 25 Ch.Div. 685, 50 L.T.N.S. 761, 25 Eng.Rul.Cas. 489; Re Kettlewell, 98 L.T.N.S. (Eng.) 23; Iles v. Iles, 158 Fla. 493, 29 So.2d 21.

The divorce between the parties severed the marriage relation and thereafter Florence McMillan was no longer the wife of Dr. McMillan. In contemplation of law each was then a single person and she could never thereafter (except by a subsequent valid marriage with him) have been his widow at his death. A widow in contemplation of law is a wife who outlives her husband, not an ex-wife who had theretofore been divorced from him. Alabama Pension Commission v. Morris, 242 Ala. 110, 112, 4 So.2d 896, 897.

The Morris case gave that connotation to the term where the petitioner was claiming a widow's pension from a previously divorced husband. The court observed:

'* * * Petitioner was not entitled to claim as the widow of Moore, inasmuch as the marriage to Moore was dissolved by divorce before his death and she did not become his widow at his death. Code of 1940, Tit. 60, § 7.'

The uniform current of opinion has been harmonious to this view. Many authorities are collated in 45 Words and Phrases, under Titles 'Widow,' pages 138 et seq., and 'Wife,' pages 153 et seq., and it is not necessary to burden the opinion with these citations.

Another insistence is that a later executed will by trustor before his divorce, making mention of and approving subdivision (a) of the trust instrument, and a codicil thereto after the divorce revoking certain specific bequests to complainant in the will, but concluding 'I hereby ratify and confirm my said last will and testament in all other respects,' indicated an intention on the part of the testator that provision (a) still remain effective for his divorced wife. We do not think so. If these subsequently executed instruments could have affected the terms of the irrevocable trust or illustrated the intention of the trustor in that regard--a matter we need not decide--they are all too indefinite in verbiage to contradict another subsequently executed instrument by the trustor after his divorce which specifically explained that subdivision (a) was conditioned on the complaint's being in wedlock with him at his death and remaining his widow, and that the divorce had the effect of nullifying the estate thereby created.

To avert the effect of this construction, complainant through learned counsel advances as an additional proposition to sustain the trust that about three years after the Florida divorce and some several months before Dr. McMillan died, these parties entered into a common law marriage in Alabama, thereby bringing her within the terms of the trust and permitting her to take as his widow. Much of the evidence in this rather voluminous record was addressed to that phase of the case. Here also, however, we must conclude with the trial court against the contention of complainant. The courts will closely scrutinize a claim of common law marriage, 55 C.J.S., Marriage, § 45, page 911; Whitman v. Whitman, 206 Miss. 838, 41 So.2d 22, and on the record presented we do not think the evidence sufficient to establish by that clear and convincing proof requisite in such cases that any such relationship ever existed between the parties.

The rule governing has been restated in many of our recent cases. There must be a mutual understanding to presently enter into the marriage relation, permanent and exclusive of all others, after which there is a public recognition of the existence of the common law marriage. There must be (1) a present agreement to take each other as husband and wife and (2) this must be followed by cohabitation or the mutual assumption openly of marital duties and obligations. Jenkins v. Avery, Ala.Sup. 59 So.2d 671; Whitworth v. Whitworth, 256 Ala. 296, 54 So.2d 575; Turner v. Turner, 251 Ala. 295, 37 So.2d 186; Murphy v. Jacobs, 249 Ala. 594, 32 So.2d 306; Campbell v. Rice, 245 Ala. 395, 17 So.2d 162; Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485.

Mere cohabitation and repute or circumstances which only show mutual consent of the parties do not establish of themselves a common law marriage. There must be words of present assent 'per verba de praesenti' to lawfully contract marriage, followed by cohabitation or the open mutual assumption of marital duties and obligations. Turner v. Turner, supra; In re Price's Estate, 129 Fla. 467, 176 So. 492; Whitworth v. Whitworth, supra.

A brief recital of the evidence bearing on this issue will suffice to illustrate there was no real common law marriage between this couple. Complainant does testify and this testimony is somewhat corroborated that she did cohabit with Dr. McMillan in Birmingham on the night of March 16, 1936, and one or two nights following in Montgomery, Alabama, and that Dr. McMillan introduced her in Montgomery as his wife. Here, however, the evidence is lacking to show definitely either prerequisite to establish a common law marriage. Complainant testifies that she was 'reconciled' with her divorced husband and slept with him that night in Birmingham and later in Montgomery, but to be...