Kettering's Estate, In re

• Decision Date: 17 December 1962
• Docket Number: No. 19920,19920
• Citation: 376 P.2d 983
• Parties: In the Matter of the ESTATE of Charles Edgar KETTERING, Deceased. Miriam H. KETTERING, Sally Kettering, a Minor, by Miriam H. Kettering, her mother and next friend, and The Denver United States National Bank, Trustee, as Claimants in said Estate, Plaintiffs in Error, v. The FIRST NATIONAL BANK OF DENVER, as Executor under the Will of Charles Edgar Kettering, Deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 983

376 P.2d 983

151 Colo. 202

In the Matter of the ESTATE of Charles Edgar KETTERING, Deceased.

Miriam H. KETTERING, Sally Kettering, a Minor, by Miriam H.

Kettering, her mother and next friend, and The Denver United

States National Bank, Trustee, as Claimants in said Estate, Plaintiffs in Error, v. The FIRST NATIONAL BANK OF DENVER, as Executor under the

Will of Charles Edgar Kettering, Deceased,

Defendant in Error.

No. 19920.

Supreme Court of Colorado, En Banc.

Dec. 17, 1962.

Robinson & Robinson, Thomas M. Sullivan, Laird Campbell, Denver, for plaintiffs in error.

Benjamin E. Sweet, Horace F. Phelps, Denver, for defendant in error.

PRINGLE, Justice.

Charles Edgar Kettering died on June 1, 1960. He had been married to Miriam H. Kettering, but difficulties arose between them. On April 20, 1950 they entered into a property settlement agreement and a divorce followed. The plaintiffs in error were claimants in the trial court against the estate, contending that certain payments specified in the property settlement agreement providing for the support and maintenance of the claimants survived the death of Kettering. The sole question before the trial court, and as presented here, is the interpretation of the property settlement agreement, and particularly whether the husband's obligation to make monthly payments for the support and maintenance of the wife and child survived his death. The sections of the agreement material to the problem before us are as follows:

5. 'For the support and maintenance of the wife and child, the husband agrees to pay to the wife so long as she shall reside in her present apartment * * * $266.25 per month * * * and after, the wife shall remove from said present abode the husband shall pay to her the sum of $333.75 per month, * * * provided, if the said child shall die, or shall attain the age of twenty-three years, and so long as the wife shall remain unmarried, the husband shall continue to pay to the wife * * * one-half of the monthly amounts above provided, so long as the wife may live and remain unmarried; provided, further, that if the wife should remarry prior to said child reaching the age of twenty-three years, then the husband shall pay to the wife * * * one-half of the total monthly payments * * *.'

6. Provides that if the 'fixed salary income of the husband shall, from time to time, or during any period, or periods, be increased, after deductions for withholding tax, social security and pension payments, $150.00 or more per month * * * then the husband shall pay 25% of such increase over said sum of $150.00'. It also provides that any outside income of the wife 'shall not affect the obligation of the husband to make the payments herein provided for.'

7. Provides for a $6,000.00 trust fund (thereafter created with the Denver United States National Bank as Trustee) to be established by the husband to guaranty the monthly payments by the husband 'in the event the husband defaults in making any payment required' and in the event of a claim of default provides for enforcement by 'Court or contempt action' and for the filing of counter-affidavits by the husband if the wife makes affidavit of default and furnishes such affidavits to the husband. Said fund is also to pay for medical and educational expenses of the child. If the child dies before her twenty-fourth birthday the fund is to be paid to the wife, but 'such payments shall not relieve the husband of the obligation to make the current monthly payments * * *'. Upon the child reaching twenty-four years of age the fund is to be paid to the wife and daughter in equal shares, but such payment 'shall not relieve the husband of the obligation to make the current monthly payments * * *.'

8. Provides that upon the death of the husband, if the husband has failed to make such provision in his Will, the sum of $10,000.00 shall be paid by his executor to the above trust, if still in existence.

9. Provides that, upon the death of the husband, if the above trust has ceased to exist, said $10,000.00 shall be paid by the executor to the wife.

10. Provides that the monthly payments provided for in paragraph 5 shall be considered as being one-half for the wife and one-half for the child with the wife to pay income taxes on the payments allocated to her and the husband to have the right to claim the child as a dependent.

12. Provides that 'the wife accepts the provisions herein made for her in lieu of any and all other claims, demands or provisions which might or could be made for her maintenance and support, and the wife also accepts the provisions herein made for her in lieu of any right to inherit from the husband by reason of the laws of descent and distribution of Colorado or any other jurisdiction, and in lieu of any claim for widow's allowance or any right of election to take against any Last Will and Testament of the husband, provided, however, that nothing in this Agreement shall be construed to bar or prevent the wife from taking any devise or bequest made to her by the husband or prevent her from claiming the benefits provided in paragraphs 8 and 9, and provided further, nothing in this Agreement contained shall prevent or bar the wife from taking, as a direct or contingent beneficiary, the proceeds of any policy of insurance upon the life of the husband or under any life insurance trust now or hereafter established.'

18. 'Time is hereby declared to be of the essence of this agreement and all of the covenants, stipulations, provisions, agreements and promises herein contained shall, so far as appropriate, apply to, bind and be obligatory upon the heirs, executors, administrators, personal representatives, successors or assigns of the parties * * *'.

The executor filed a motion to dismiss the claim. Upon hearing, the trial court dismissed the claim, finding that the agreement did not provide for the payment of sums for the support and maintenance of the wife and child beyond the period of the husband's life and that the obligation to make such payments did not devolve upon the estate of the husband.

Ordinarily the obligation of a husband for the support and maintenance of a wife from whom he has separated ends with his death; but the rule is recognized in Colorado that a husband may by contract agree that such payments shall continue after his death and be payable from his estate, International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264, 147 A.L.R. 700. Such an agreement is enforceable if it expressly or by clear implication provides that the payments shall continue after the death of the husband, Cooke v. Cooke, 2 A.D.2d 128, 154 N.Y.S.2d 757, 762. See also Liebhardt, supra, where the agreement expressly provided that the executor should continue the payments after the husband's death.

The question posed then is: Does the agreement before us by express provision or by...