Hamilton v. Hamilton
| Decision Date | 16 November 1950 |
| Docket Number | 6 Div. 878 |
| Parties | HAMILTON v. HAMILTON. |
| Court | Alabama Supreme Court |
Hugh A. Locke and F. Raymond Ingram, of Birmingham, for appellant.
Kelvie, Appelbaum, and Clifford Emond, of Birmingham, for appellee.
Andrew S. Hamilton and Emma Stokes Hamilton were married in Birmingham, Alabama, on January 19, 1942. He was approximately sixty years of age at the time of the marriage and she was about fifty-five years old at that time. Both of them had been married before. Their spouses were dead. She had no children by her former husband. Mr. Hamilton had one living daughter by his first marriage and two grandchildren. They both owned some property. Prior to their marriage, they discussed business matters, but such discussion did not culminate in an antenuptial contract.
On May 23, 1944, Mr. and Mrs. Hamilton entered into a postnuptial agreement in the office of Mr. Hamilton's attorney. After this agreement was reduced to writing, it was signed by Mr. and Mrs. Hamilton in the attorney's office. The pertinent provisions of this postnuptial contract or agreement are as follows:
'Agreement by and between
Andrew S. Hamilton and his wife Emma Stokes McCaskill Hamilton State of Alabama Jefferson County}
'This agreement made in the City of Birmingham, County of Jefferson, State of Alabama, on the 23rd day of May, 1944, between Andrew S. Hamilton, hereinafter referred to as the First Party and his wife Emma Stokes McCaskill Hamilton, hereinafter referred to as the Second Party, Witnesseth:
'Whereas, the said parties hereto are husband and wife at the time of the execution of this agreement are living at 8332 Seventh Terrace, South, in Birmingham, Jefferson County, Alabama; the First Party's grandchildren and the parties hereto have no homestead at the time of the execution of this agreement; that the parties hereto married on the 19th day of January, 1942, and have lived together continuously since said date; that both of the parties hereto have been previously married; and the First Party has one child living, namely, Dessie Hamilton McCrary, and two grandchildren, namely, Marshall Fitzpatrick and Dorothy Fitzpatrick, who are the children of Dessie Hamilton McCrary and her first husband, Marshall H. Fitzpatrick, deceased; that the Second Party has no children living and her only near living relative is her mother, and,
'Whereas, the First Party owns four houses and lots in the city of Birmingham worth in all approximately Fifteen Thousand Dollars ($15,000.), three of them being worth about Seven Thousand Dollars ($7,000.), and the other, the one hereinafter referred to as Lot 1, Block 1, J. L. Thornton's Second Addition to Ridgeway Terrace (Map of Subdivision filed in Map Book 17, Page 42), being worth approximately Eight Thousand Dollars ($8,000.). The First Party also owns Five Thousand Dollars ($5,000.) of paid-up life insurance upon his life with the Penn Mutual Life Insurance Company and Ten Thousand Dollars ($10,000) of life insurance upon his life with the New England Mutual Life Insurance Company, the present or surrender value of the latter being approximately Six Thousand Dollars ($6,000.) and one used automobile which is approximately three years old, several pieces of furniture located in the house where the parties now live, stocks worth approximately Five Hundred Dollars ($500.00) and cash in the bank of not more than One Thousand Dollars ($1000.). The First party owns no other property except personal assets and miscellaneous items worth less than Five Hundred Dollars ($500.00).
'Whereas, the Second Party has a separate extate of her own worth of this date approximately Six Thousand Dollars ($6,000.00), and,
'Whereas, the Second Party has become apprehensive lest she be deprived of her rights as a widow of the First Party in the estate of the First Party in the event of his death, and the said First Party desires to show his good faith and to satisfy and comply with her wishes, and together they desire to fix and determine the rights of each of them in any and all property of every nature and description and wheresoever located that the other of them may own, at the death of the First Party, and, particularly to have the First Party agree to make, and make, the second Party agree to accept, and assent to a pecuniary and property settlement and provision for the Second Party's Benefit, in lieu and in bar of any and all right or claim of dower in and to any and all of the First Party's lands, tenements and hereditaments, and, also, in lieu and full discharge and satisfaction of any and all other right, title, and interest in and to any homestead and personal estate that she, as a widow, might have but for such provision and the execution and delivery of this Agreement and the full performance thereof by the First Party:
'Now, therefore, it is mutually agreed as follows:
'1. (a) That the Second Party shall have, keep, and retain the sole ownership, control, and enjoyment of her separate property during her life and may by last will and testament or by any other testamentary disposition dispose of the same as she may see fit, without interference by or from the First party.
'2. (a) That the First Party will change the beneficiary named in the four insurance policies, totaling Five Thousand Dollars ($5,000.) hereinafter described and cause the Second Party to be named the beneficiary therein and agrees not to change the beneficiary from the Second Party to any other person, firm, corporation, or to his estate, unless the Second Party predeceases the First Party or ceases to live with the First Party, to the end that the Second Party shall receive the full benefit accruing from said policies upon the death of the insured in the event the First party predeceases the second party and the parties are living together as man and wife. The description of said insurance policies follows:
* * *
* * *
'The First Party warrants that said Five Thousand Dollars of Insurance is paid up and that there are no liens nor encumbrances against the same.
'(b) The First Party further agrees to execute a warranty deed conveying to the Second Party the house and lot in which Mrs. Dessie Hamilton McCrary now lives, more particularly described as:
'Lot 1, Block 1, J. L. Thornton's Second Addition to Ridgeway Terrace (Map of Subdivision filed in Map Book 17, Page 42).
'3. (a) The First Party having acceded in full to the demands, desires and wishes of the Second Party in respect to the premises, and the Second Party having been fully advised in the premises the Second Party does hereby assent to the provisions hereinabove made for her benefit and agrees to accept the same in lieu and in bar of any and all right or claim of dower and of any and all claims of homestead rights or interest in and to any and all of the lands, tenements and hereditaments, wheresoever the same may be located, of the first party, to which the Second Party, as his widow, might be, or become, entitled by [sic] for the execution of this instrument; and, also, in lieu and wholly in discharge, satisfaction and payment of any and all other right, claim, title or interest, of any nature or character in and to any and all of his lands, tenements and hereditaments, wherever the same may be located, and, also, of any or all right, claim, title or interest, of any nature or character in and to any and all of his personal estate, wheresoever the same may be situated, to which the Second Party, as the widow of the First Party, might be, or become entitled but for the execution and delivery of this Agreement, and the performance of the covenants herein by the First Party.
'(b) That, in consideration of the covenants of the First Party herein contained, the Second Party, does, for herself, her heirs, executors, administrators and assigns, covenant that, immediately upon the receipt of the warranty deed conveying the said above described house and lot she will execute and deliver any and every instrument, or document, that, in the judgment of counsel for the First Party, or for his heirs, executors, administrators or assigns, may be necessary or any and every such instrument or document that any such counsel may, or shall, request her to execute and deliver, to accomplish and affect a release and waiver of all her right or claims or interest, as aforesaid.
'4. This agreement, shall be, and become effective upon delivery of the deed hereinabove described conveying the above described house and lot to the Second Party and upon the changing of the beneficiary in respect to the four policies of insurance hereinabove described.
'In Witness Whereof, the parties have hereunto set their hands and seals the day and year first above written.
(S) Andrew S. Hamilton
Andrew S. Hamilton--First Party
(S) Emma Stokes McCaskill Hamilton
Emma Stokes McCaskill Hamilton--Second Party
'Witnesses:
(S) F. R. Ingram
(S) Frances Cashatt'
(Emphasis supplied)
Thereafter, on May 31, 1944, Mrs. Hamilton signed the following receipt:
'State of Alabama Jefferson County
'I do hereby acknowledge that I have this day received a warranty deed conveying the house and lot hereinabove described to me together with the abstract covering said premises and also that I have received the four insurance policies with the beneficiary changed in each to me and I do hereby accept the same as full satisfaction in discharge of any claim for dower and homestead rights and all other claims as hereinabove set out. Executed in Birmingham, Alabama, this 31st day of May, 1944.
(S) Emma Stokes McCaskill Hamilton
Emma Stokes McCaskill Hamilton'
After the four insurance policies carried with the Penn Mutual Insurance Company had been delivered to Mrs. Hamilton, wherein she was made the beneficiary, she turned them over to her husband, with the request that they be placed in a safe-deposit box which they held...
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