Kennington's Estate, In re, No. 44538

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSMITH; ETHRIDGE
Citation204 So.2d 444
PartiesIn re ESTATE of John Andrew KENNINGTON, Deceased. DEPOSIT GUARANTY NATIONAL BANK, Executor, v. Mrs. Mignon T. KENNINGTON.
Docket NumberNo. 44538
Decision Date28 November 1967

Page 444

204 So.2d 444
In re ESTATE of John Andrew KENNINGTON, Deceased.
DEPOSIT GUARANTY NATIONAL BANK, Executor,
v.
Mrs. Mignon T. KENNINGTON.
No. 44538.
Supreme Court of Mississippi.
Nov. 28, 1967.

Page 445

Butler, Snow, O'Mara, Stevens & Cannada, Henley, Jones & Henley, A. Y. Harper, Jackson, for appellant.

Cox, Dunn & Clark, Green, Green & Cheney, Jackson, for appellee.

SMITH, Justice:

This is an appeal by Mrs. Ardath E. Kennington, Deposit Guaranty National Bank, as executor of the Estate of John Andrew Kennington, deceased, Mrs. Marian Kennington Stevens, John Kennington Stevens and Michael David Stevens from a decree of the Chancery Court of the First Judicial District of Hinds County entered in a suit begun by appellee, Mrs. Mignon T. Kennington, as complainant, in which they were defendants and cross-complainants.

By her bill of complaint, Mrs. Mignon T. Kennington sought to enforce against the estate of her former husband, the late John Andrew Kennington, a marital settlement contract, entered into during the pendency of her divorce action against him, which provided, among other things, that he make payments to her of $750 per month until her death or remarriage.

In their answer, appellants challenged her right to the relief sought because, they alleged, (1) there was no legal consideration for the contract, and (2) the monthly payments, having been incorporated in the divorce decree, in which she had been granted a divorce from Kennington, were merged into such decree so that the obligation lost its contractual character, became alimony and terminated upon Kennington's death.

The cross-bill reiterated the statements contained in the answer, charged that there had been material changes in the status of the parties since the entry of the divorce decree, and alleged that the court, under Mississippi Dode 1942 Annotated section 2743 (1956), should modify the decree so as to accord with such changed status. Alternatively, the court was asked to reduce or commute the obligation and to require complainant to accept, in lieu of the monthly payments, a lump sum based upon her life expectancy and probability of remarriage as shown by standard statistical tables. On appeal, for the first time, appellants urge an additional objection to the enforcement of the contract, and now argue that it was part of a collusive agreement between the parties, conditioned upon divorce, and, therefore, was void.

After some fifteen years of marriage, Mrs. Mignon T. Kennington and John Andrew Kennington had separated. She filed a bill against him for separate maintenance and a decree was entered in 1951 granting the prayer of her bill. In 1954 Mrs. Kennington brought suit against her husband for divorce and alimony. In this suit each party was represented by distinguished and able counsel. While the case was pending, after considerable negotiation, a settlement of all issues, save that of divorce, was agreed upon by the parties. This agreement was incorporated in a written contract, prepared and approved by respective counsel for the parties. The contract was entitled 'Full Marital Settlement Agreement.' The enforcement of one of the provisions of this contract, as embodied in its paragraph (e), is the subject of the present litigation. The relevant portions of paragraph (e) are as follows:

(e) He shall promptly pay her Seven Hundred and Fifty Dollars ($750.00) on June 1, 1954, and Seven Hundred and Fifty Dollars ($750.00) on the first day of each successive month thereafter throughout the lifetime of said Mrs. Mignon T. Kennington, or until she remarries. If she remarries, this Paragraph

Page 446

(e) shall thereafter be ineffective but this paragraph shall not be affected by the death of John Andrew Kennington. John Andrew Kennington binds himself, his heirs, executors and assigns, to this covenant and obligation to her even after his death.

It is further agreed that the provisions of Paragraph (e) may be inserted in a decree of divorce of the parties, if and when granted by the court, but without affecting the contractual obligation of said provisions hereof after the death of said John Andrew Kennington. (emphasis added).

Following its execution, the contract was submitted to the court for approval, and, several days later, the issue of divorce was tried and a decree was entered granting Mrs. Mignon T. Kennington a divorce from John Andrew Kennington. This decree incorporated the findings of the court with respect to the above contract, as well as this order of the court:

(A)nd the court finding that the parties have agreed on a satisfactory property settlement, and that the defendant should pay the complainant the sum of $2,000.00 in cash now and $750.00 on June 1, 1954, and $750.00 on the first day of each successive month thereafter throughout the lifetime of the complainant, or until she remarries; and the court finding such entire property settlement to be proper and in all things approved by it:

* * * (3) That the defendant, John Andrew Kennington, is ordered and directed to pay the complainant, Mrs. Mignon T. Kennington, the sum of $750.00 on June 1, 1954, and $750.00 on the first day of each successive month thereafter throughout the life time of said Mrs. Mignon T. Kennington or until she remarries. This obligation shall be abated upon her remarriage. This obligation shall not, however, be affected by the death of John Andrew Kennington but such obligation shall be a debt of and a probatable claim against his estate. * * * (emphasis added).

There was no appeal from the decree. From the date of the entry of the decree in 1954 until his death in November of 1965, John Andrew Kennington recognized the validity of the obligation which he had assumed and faithfully made all payments as he had contracted to do. Moreover, he also recognized the validity of the divorce decree by contracting two subsequent marriages, the last of which was to the appellant, Mrs. Ardath E. Kennington, who was his fourth wife and to whom he was married at the time of his death.

After hearing the case, the chancellor delivered an opinion in which the facts are summarized:

On November 7, 1951 Mrs. J. A. Kennington filed a Bill of Complaint against J. A. Kennington for separate support and maintenance. The said Mrs. J. A. Kennington is one and the same person as Mrs. Mignon T. Kennington who brings the matters under consideration by the Court.

In this suit for separate maintenance various specific charges of misconduct on the part of the Defendant and ill treatment to his then wife were made. The parties had for a considerable length of time lived apart. A final and agreed decree was entered in said cause, being No. 43,481, and Exhibit D-1 in this suit.

On March 30, 1954 in Cause No. 47,637 a Bill of Complaint was filed by Mrs. Mignon T. Kennington praying for a divorce from J. A. Kennington and for a settlement of all marital and property rights. This complaint alleged a desertion by the Defendant for a period of almost four years and due to no fault on the part of the Complainant. To this complaint no answer was filed or a defense made. A final decree was entered on May 20, 1954 and exhibited in this cause by Exhibit C-2.

Page 447

On May 12, 1954, eight days before the final decree in Cause No. 47,637, the parties made an agreement settling all property rights between them. The Defendant knew the extent of his mistreatment of his wife and of her aid and her help in the accumulation of his property and money. His feeling of guilt and...

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20 practice notes
  • East v. East, No. 55514
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Agosto 1986
    ...is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character. In re Estate of Kennington, 204 So.2d 444 In 1976 our Legislature authorized a divorce on the grounds of irreconcilable differences. Miss. Code Ann. Sec. 93-5-2 (1976 Supp.). This s......
  • Bell v. Bell, No. 89-CA-1108
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Octubre 1990
    ...contracts. See, e.g., Newell v. Hinton, 556 So.2d at 1042; East v. East, 493 So.2d 927, 931-32 (Miss.1986); In re Estate of Kennington, 204 So.2d 444, 449 (Miss.1967). Sullivan v. Pouncey, 469 So.2d 1233, 1234 (Miss.1985) did not alter this view, only recognizing that the statute required a......
  • In re Estate of Hodges, No. 2001-CA-00030-SCT.
    • United States
    • Mississippi Supreme Court
    • 14 Febrero 2002
    ...therefore, continue as a binding obligation upon his estate. Smith v. Smith, 349 So.2d 529, 531 (Miss.1977); In re Estate of Kennington, 204 So.2d 444, 449 ¶ 20. However, in Sheppard, this Court expanded the rationale of Peacocke determining that periodic alimony payments did not terminate ......
  • Turner v. Turner, No. W2015-01165-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • 11 Agosto 2016
    ...divorcing husband and wife, and incorporated in a divorce decree, does not change its character."); see also In re Estate of Kennington, 204 So.2d 444, 449 (Miss. 1967), corrected, 206 So.2d 337 (Miss. 1968) ("Neither the approval of the contract by the trial court nor the incorporation in ......
  • Request a trial to view additional results
20 cases
  • East v. East, No. 55514
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Agosto 1986
    ...is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character. In re Estate of Kennington, 204 So.2d 444 In 1976 our Legislature authorized a divorce on the grounds of irreconcilable differences. Miss. Code Ann. Sec. 93-5-2 (1976 Supp.). This s......
  • Bell v. Bell, No. 89-CA-1108
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Octubre 1990
    ...contracts. See, e.g., Newell v. Hinton, 556 So.2d at 1042; East v. East, 493 So.2d 927, 931-32 (Miss.1986); In re Estate of Kennington, 204 So.2d 444, 449 (Miss.1967). Sullivan v. Pouncey, 469 So.2d 1233, 1234 (Miss.1985) did not alter this view, only recognizing that the statute required a......
  • In re Estate of Hodges, No. 2001-CA-00030-SCT.
    • United States
    • Mississippi Supreme Court
    • 14 Febrero 2002
    ...therefore, continue as a binding obligation upon his estate. Smith v. Smith, 349 So.2d 529, 531 (Miss.1977); In re Estate of Kennington, 204 So.2d 444, 449 ¶ 20. However, in Sheppard, this Court expanded the rationale of Peacocke determining that periodic alimony payments did not terminate ......
  • Turner v. Turner, No. W2015-01165-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • 11 Agosto 2016
    ...divorcing husband and wife, and incorporated in a divorce decree, does not change its character."); see also In re Estate of Kennington, 204 So.2d 444, 449 (Miss. 1967), corrected, 206 So.2d 337 (Miss. 1968) ("Neither the approval of the contract by the trial court nor the incorporation in ......
  • Request a trial to view additional results

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