Jennings v. First Nat. Bank

• Decision Date: 10 June 1935
• Docket Number: 8145.
• Citation: 180 S.E. 772,116 W.Va. 409
• Parties: JENNINGS v. FIRST NAT. BANK OF WILLIAMSON et al.
• Court: West Virginia Supreme Court

180 S.E. 772

116 W.Va. 409

JENNINGS v. FIRST NAT. BANK OF WILLIAMSON et al.

No. 8145.

Supreme Court of Appeals of West Virginia.

June 10, 1935

Submitted May 1, 1935.

Dissenting Opinion July 19, 1935.

Rehearing Denied and Concurring Opinion July 25, 1935.

Syllabus by the Court.

A separation agreement entered into between husband and wife in contemplation of divorce providing for periodic payments by the husband to the wife for her "sole and exclusive use and benefit * * * as and for her support and maintenance and for so long as she may live, or until she shall again be married," in the absence of other provisions clearly indicating a contrary intent, will continue after the death of the husband.

MAXWELL and KENNA, JJ., dissenting.

Appeal from Circuit Court, Mingo County.

Suit by Sallie May Jennings against the First National Bank of Williamson, executor of the estate of Dr. O. H. Jennings deceased, and others. From an adverse decree, defendants appeal.

Affirmed.

Hogg & Crawford, J. Brooks Lawson, and Randolph Bias, all of Williamson, for appellants.

Goodykoontz & Slaven and Fred P. Kopp, all of Williamson, for appellee.

LITZ President.

This suit involves a property settlement between husband and wife in contemplation of divorce in a pending cause.

Plaintiff Sallie May Jennings, and Dr. O. H. Jennings were married March 17, 1917. Of this union two sons were born, Olin Henry on January 25, 1918, and William James August 25, 1919. Dr Jennings having sued for divorce, a writing designated "Deed of Trust" was entered into January 9, 1932 by and between himself, party of the first part, Wells Goodykoontz and George W. Crawford, parties of the second part, and Mrs. Jennings, party of the third part. The instrument recites that "O. H. Jennings and Sallie May Jennings are man and wife, living separate and apart"; that a divorce proceeding, "styled O. H. Jennings vs. Sallie May Jennings," is pending in the circuit court of Mingo county, W. Va.; and that the "parties are desirous of settling their property rights as between themselves without the necessity of an adjudication thereon in said cause."

In consideration of the premises and $1 in hand paid, the party of the first part and the party of the third part agreed as follows: (1) That the party of the first part will pay unto party of the third part "for her sole and exclusive use and benefit as and for her support and maintenance, and for so long as she may live, or until she shall again be married," the sum of $100 per month in two equal installments on the 1st and 15th days thereof; (2) that, in the event of an absolute divorce between them and her remarriage or death, the monthly payments to be made to her shall thereafter be "used to help educate the two children," Olin Henry and William James, until they shall have arrived at the age of twenty-one years; (3) that she shall retain as her own all personal property in her possession, including jewelry, personal belongings, household and kitchen furniture, cooking utensils, piano, "and other items of like character." There was also "reserved" by the wife her contingent right of dower in the real estate and her contingent statutory interest in the personal property then owned by the husband. Dr. Jennings, by the writing, conveyed to the parties of the second part an undivided one-half interest in valuable real estate in Williamson, W. Va., to secure the payment of the bimonthly installments. It was also provided in the instrument that upon default in the payment of any of the installments the parties of the second part shall, at the request of Mrs. Jennings, proceed to sell the property conveyed for the benefit of the trust.

On the day of the execution of the contract a decree was entered in the divorce proceeding, granting the husband a divorce from bed and board and the custody of the children, and reciting that "the matter of maintenance and alimony for the defendant has been settled and agreed upon out of court by the parties hereto, as set forth in a writing called a deed of trust, bearing date the 9th day of January, 1932, * * * which writing the court has seen, and to which he finds no reason for objection."

Dr. Jennings died, testate, March 24, 1934. By his last will and testament, dated August 27, 1928, he bequeathed $1,000 to his mother, and devised and bequeathed the remainder of his estate to the two children and nominated the First National Bank of Williamson executor under his will and trustee of the estate devised and bequeathed to the children, until they shall have obtained the age of twenty-five years. This suit was instituted in August, 1934, by the widow against the executor to recover alleged arrears under the contract of settlement accruing after the death of Dr. Jennings.

Plaintiff having recovered in the circuit court, defendant contends (1) that the suit is not cognizable in equity; (2) that the payments under the agreement, correctly interpreted, terminated at the death of Dr. Jennings; (3) that the court may change the decree or contract by reducing or cutting off the payments; (4) that the contract is without consideration and against public policy.

1. As the payments, if continuing, are in the nature of an annuity, a court of equity has jurisdiction for their enforcement. 3 C.J. 219; Fleming v. Peterson, 167 Ill. 465, 47 N.E. 755; Marshall v. Thompson, 2 Munf. (Va.) 412.

2. Does the agreement, fairly interpreted, require the payment of the installments "for so long as she (Mrs. Jennings) may live, or until she shall again be married," as stated in the writing, or shall this language of the contract be interpreted, as the executor asserts, to read "for so long as they (Dr. and Mrs. Jennings) may live, and she shall not become married to another"? As was stated in Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 1 L.R.A. 320, 8 Am.St.Rep. 417, involving a consent decree for payment of alimony to the wife "for so long as she may be and remain sole and unmarried," provisions of this character are to be interpreted according to the natural sense and meaning of the language used. The court, in that case, further stated that the natural meaning of the words there used "is that alimony shall be paid for so long a time as Mrs. Storey shall remain unmarried, whether before or after her husband's death." In Henrie v. Henrie, 71 W.Va. 131, 76 S.E. 837, 840, the court, recognizing this rule, reformed a decree of divorce from bed and board granting the wife alimony "for and during her natural life," so as to read "for and during their joint lives, or until reconciliation." In 71 W.Va. 131, at page 137, 76 S.E. 837, 840, it is stated: "The decree appealed from is erroneous, however, in that it provides for the payment of alimony during plaintiff's life. It should have been during their joint lives or until reconciliation. Martin v. Martin, 33 W.Va. 695, 11 S.E. 12; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am.Dec. 52. * * * We will enter a decree here amending the decree below by substituting for the words, 'for and during her natural life,' the words, 'for and during their joint lives, or until reconciliation.' * * *" Barnes v. Klug, 129 A.D. 192, 113 N.Y.S. 325, holds that a separation agreement providing that the husband shall pay to the wife for her support certain weekly or monthly installments for life is binding on the husband's personal representatives, though not so stated in terms. In Stratton v. Stratton, 77 Me. 373, 52 Am.Rep. 779, the court held that a decree for alimony for the life of the wife, according to an award by referees, was binding on the husband's estate. In Dickey v. Dickey, 154 Md. 675, 141 A. 387, 389, 58 A.L.R. 634, the parties, pending divorce proceedings, agreed that, in the event of a divorce, permanent alimony should be allowed to the wife in the sum of $25 per week, payable until her death or remarriage. In a subsequent suit to enforce a decree, based upon the agreement, the court said: "The agreement by the husband to pay the wife a weekly sum of money until her death or remarriage did not limit his payments to the joint lives of the spouses, and hence was not what the court could have decreed as alimony; but this agreement providing the wife with a weekly stipend, without reference to whether or not the husband survived her or they lived separate and apart, was properly incorporated in the decree, as was determined by Emerson v. Emerson, 120 Md. 584, 598, 599, 87 A. 1033, and Newbold v. Newbold, 133 Md. 170, 174, 175, 104 A. 366; Miller's Equity, § 269; 2 Bishop on Marriage and Divorce, § 885. When tested by the rules stated, the decree in this case was not for alimony, but was an adoption by the chancellor of a prior agreement between the parties." Babcock v. Babcock (1933) 147 Misc. 900, 265 N.Y.S. 470, 473, involved the interpretation of a decree of a Pennsylvania court granting a divorce to the husband and requiring him to pay permanent and continued alimony of $1,500 per year during the life of the wife or until such time as she shall remarry. In holding that the payments should continue after the death of the husband, the court said:

"It not appearing by statute or judicial decision of the state of Pennsylvania whether the provision for alimony contained in the decree abated upon the husband's death, the decree will be construed according to the law prevailing in this state. Murrin v. Archbald Consolidated Coal Co., 232 N.Y. 541, 134 N.E. 563.

In Wilson v. Hinman, 182 N.Y. 408, 414, 75 N.E. 236 238, 2 L.R.A. (N. S.) 232, 108 Am.St.Rep. 820, while holding that alimony fixed by the court in a judgment of divorce abates upon the death of the husband, the court said: 'It may very well be that by the agreement of the parties alimony...