Hall v. Hall

• Citation: 105 Colo. 227,97 P.2d 415
• Decision Date: 13 November 1939
• Docket Number: 14620.
• Parties: HALL v. HALL.
• Court: Supreme Court of Colorado

97 P.2d 415

105 Colo. 227

HALL v. HALL.

No. 14620.

Supreme Court of Colorado

November 13, 1939

Rehearing Denied Dec. 18, 1939.

In Department.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Divorce proceeding by George N. Hall against Irene Hall wherein a decree of absolute divorce was granted defendant on her cross-complaint. On petition of the plaintiff, the property settlement agreement and trust agreement embodied in the decree was canceled, and the decree modified and defendant brings error.

Reversed with directions.

Albert J. Gould, of Denver, for plaintiff in error.

Omar E Garwood and Milton C. Garwood, both of Denver, for defendant in error.

OTTO BOCK, Justice.

This controversy involves the extent of the exercise of judicial authority to cancel and set aside a property settlement and trust agreement entered into between husband and wife, in connection with and growing out of divorce proceedings. December 28, 1931, defendant in error, hereinafter designated as plaintiff, filed complaint in divorce against plaintiff in error, to whom we hereinafter refer as defendant, praying for a decree of absolute divorce. December 29, 1931, defendant filed her answer and cross complaint alleging cruelty, and also praying for a decree of absolute divorce. March 4, 1932 the court entered its findings of fact and conclusions of law in favor of defendant, paragraph 4 thereof reading as follows: 'That the plaintiff and defendant have entered into a property settlement agreement, which has been exhibited to the Court and which the Court finds to be fair and equitable.' The mentioned agreement was executed by the parties the day preceding the entry of the court's findings, the portions thereof pertinent to the controversy herein being as follows:

'Whereas the parties hereto are husband and wife and certain irreconcilable differences have arisen between the parties hereto making it absolutely impossible for them to live together and said parties have determined that it is to their best interests that they live separate and apart from each other, and that they by the terms thereof, determine, settle and adjust forever all property rights arising out of said marriage;

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'1. Said husband shall and simultaneously with the execution hereof has created a trust for the benefit of said wife to become operative on February 7, 1934, when said husband becomes twnety-five (25) years of age. A copy of said trust agreement with the Worcester Bank & Trust Company of Worcester, Massachusetts, as trustee, is attached hereto and marked Exhibit 'A.'

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'8. The wife in consideration of the premises, and of the mutual covenants herein contained hereby waives, releases, foregoes, and disclaims, all her rights in any and all property, both real, personal and mixed wheresoever situate, of which her husband is or may become seized or possessed, and hereby expressly waives all right to inherit from said husband under the laws of any and all states of the United States and foreign countries, and hereby agrees that husband shall have the right to dispose of his property of any kind by will, and in case husband fails to dispose of this property of any kind by will, then said property shall descend to his legal heirs other than wife, and she shall not inherit anything from him.

'9. The wife further agrees that until such time as no further payments are being made to her by virtue of this agreement, and shall inform husband of her address, and further promises and agrees that immediately upon her remarriage she shall inform both husband and the Worcester Bank & Trust Company of That fact.'

The same date plaintiff entered into a trust agreement (exhibit A) with the Worcester Bank & Trust Company, of Worcester, Massachusetts, in which plaintiff is donor, the trust company is trustee and defendant is donee, the pertinent parts thereof reading as follows:

'This Agreement made in triplicate this 3rd day of March in the year one thousand nine hundred and thirty-two, by and between George N. Hall, of the City and County of Denver, State of Colorado (hereinafter called the 'Donor'), party of the first part, and Worcester Bank & Trust Company, a corporation organized and existing under and by virtue of the laws of the state of Massachusetts and having its principal place of business in Worcester, Massachusetts (hereinafter called the 'Trustee'), party of the second part,

'Witnesseth:

'Whereas, by the last will and testament of Judson W. Hall of Worcester, Massachusetts, the rest, residue and remainder of his property after certain specific legacies and bequests was left to the Trustee (then Worcester Trust Company) in trust for the uses and purposes therein set forth; and

'Whereas by the terms of said trust the Trustee was directed to pay over to the Donor certain of the income therefrom, and was further directed to pay over to the Donor when he should have reached the age of twenty-five years one-half of the balance then remaining in the hands of the Trustee; and

'Whereas Donor, if then living, will attain the age of twenty-five years on the 7th day of February, 1934;

'Now Therefore, in consideration of the covenants of the Trustee herein contained and of certain other and valuable considerations not herein recited, the Donor hereby directs the Trustee upon the 7th day of February, 1934 (providing the Donor shall be alive on that date) to turn over to itself as Trustee under this agreement whatever balance in its hands as Trustee under the last will and testament of Judson W. Hall aforesaid shall upon that date pass to the Donor by the terms of the said last will and testament of Judson W. Hall. The securities and assets forming said balance determined as of that date shall be listed and on such date attached to this agreement marked 'Exhibit A.'

'Said assets and securities and all other property hereafter delivered to the Trustee hereunder shall be held by the Trustee in trust nevertheless for the following uses and purposes, that is to say:

'To hold, manage, invest and reinvest the same and to collect and receive the income, rents, issues and profits thereof during the life of the Donor and, after paying therefrom the commissions of the Trustee and all other expenses incidental to the management of the trust estate, during that period of time to pay or apply the net income, rents, issues and profits thereof as follows in quarterly installments:

'1. The sum of four hundred and fifty dollars ($450.00) of each installment shall first be deducted and paid to Irene Hall, at present the wife of the Donor.

'It is understood that the said Irene Hall is about to obtain a divorce from the Donor and the above sum of $450.00 per quarter shall be paid to her during her life provided that if at any time in the future she shall remarry, the Trustee shall cease paying to her the said sum of $450.00 per quarter and shall thereafter pay the entire aforesaid income, rents, issues and profits to Donor during the life of this agreement.

'Upon the death or remarriage of Irene Hall, her right to receive any payment of any kind from this trust shall cease and her heirs, devisees, legatees and assigns shall take nothing herefrom.

'2. The balance of said income, rents, issues and profits shall be paid to the Donor during the life of this agreement.

'This agreement, however, is upon and subject to the limitation: That at any time during his life or by his last will and testament, the Donor may by notice to the Trustee of ten (10) days in writing executed by him under his hand and seal, from time to time withdraw from the hands of the Trustee assets and securities then in its hands and forming the principal of this trust fund; provided however that the Trustee shall be required until the death or remarriage of Irene Hall to keep in its hands and forming principal of the trust fund income producing assets and securities of the value of thirty-seven thousand five hundred dollars ($37,500.00), such value to be taken as of the date of withdrawal by Donor. Upon the death or remarriage of Irene Hall, Donor shall have the power to revoke this agreement.

'Donor shall further have the power to modify or change any of the terms of this agreement, providing that the rights of Irene Hall, as hereinBefore set forth, shall be preserved intact, and shall in no wise be modified or changed.

'Upon the death of the Donor in the lifetime of Irene Hall and Before her remarriage, the Trustee shall continue to make payments to her as heretofore provided until such time as she dies or remarries.

'The income remaining shall be disposed of by the Trustee in accordance with the terms of the last will and testament of the Donor, or if he shall leave no last will and testament shall become vested in his heirs. Upon the death or remarriage of Irene Hall subsequent to the death of the Donor, this agreement shall cease and terminate and the Trustee shall at such time pay over the principal remaining in its hands as directed by the last will and testament of the Donor; or in the event he shall have left no last will and testament to his heirs.'

September 26, 1932, the court entered its final decree of divorce, the last paragraph of which is as follows:

'And it is Further Ordered, Adjudged and Decreed by the Court that this Court retains jurisdiction of the subject matter of this action and the parties thereto for the purpose of enforcing the property settlement agreement and any and all the terms thereof heretofore entered into between the plaintiff and defendant and referred to in the findings of fact and conclusions of law heretofore entered herein.'

December 6, 1938, plaintiff filed...