Kirby v. Kent

• Decision Date: 04 April 1935
• Docket Number: 31647
• Citation: 160 So. 569,172 Miss. 457
• Court: Mississippi Supreme Court
• Parties: KIRBY et al. v. KENT

160 So. 569

172 Miss. 457

KIRBY et al. v. KENT

No. 31647

Supreme Court of Mississippi

April 4, 1935

Division A

1. EXECUTORS AND ADMINISTRATORS.

Contract between husband and wife in contemplation of divorce, whereby wife released all claims for alimony or property adjustment held not to have affected rights of wife as widow where divorce was not granted before husband's death (Code 1930, sections 1404, 1629).

2. DESCENT AND DISTRIBUTION.

Postnuptial agreement will bar only such rights in estate of deceased spouse as are expressly enumerated or reasonably inferable from language employed.

3. DESCENT AND DISTRIBUTION.

Mere agreement for alimony in contemplation of divorce is no bar to right of surviving spouse to take by inheritance if divorce has not been granted.

4 DIVORCE.

Perjury is not ground for collateral attack on divorce decree.

5 DIVORCE.

Chancery court is court of general jurisdiction with jurisdiction of divorce proceeding (Const., section 159).

6. DIVORCE.

Divorce decree expressly reciting every fact necessary to validity thereof could not be collaterally attacked by strangers thereto, who were sisters of deceased wan whom divorced woman subsequently married, in order that they might inherit deceased brother's estate.

HON. R. E. JACKSON, Chancellor.

APPEAL from the chancery court of Leflore county HON. R. E. JACKSON, Chancellor.

Proceeding by Mrs. Grace Harrison Kent against R. L. Kirby, Administrator, and others, to remove R. L. Kirby, as administrator of the estate of S. J. Kent, deceased, and for the appointment of complainant as administrator of such estate. From a decree for complainant, defendants appeal. Affirmed.

Affirmed.

Alfred Stoner, of Greenwood, for appellants.

It is well settled in this state that judgments and decrees procured by fraud are void both in equity and at law.

Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669; Richardson v. Brooks, 52 Miss. 118; McCraney v. N. O. & N. E. R. R. Co., 128 Miss. 248, 90 So. 881; White v. Williams, 159 Miss. 732, 132 So. 573; Ellis v. Ellis, 152 Miss. 836, 119 So. 304; Doss v. State, 156 Miss. 522, 126 So. 197.

A void judgment on bad summons may be attacked by anybody anywhere.

Joiner v. Delta Bank, 71 Miss. 382, 14 So. 464; Vergman v. Hutchinson, 60 Miss. 872; Aron v. Chaffe, 72 Miss. 159, 17 So. 11.

It is generally held that where there is a conflict between the recitations of a decree and the record then the record controls.

34 C. J. 550 and 551; 9 R. C. L. 457.

Unless otherwise expressed in the statute, conviction and imprisonment without the state is not a cause for divorce.

19 C. J. 43; Leonard v. Leonard, 6 L.R.A. 632; Long v. Long, L.R.A. 1917C 158; State v. Ducket, 31 L.R.A. 519 and 520; Suter v. Suter, 72 Miss. 345, 16 So. 673.

The property settlement agreement signed by the appellee and Mr. Kent shows on its face that insofar as property rights were concerned the parties were terminating all claims.

30 C. J. 1067; 13 R. C. L. 1362.

A settlement of property rights is still good after the death of the spouse.

Palson v. Stewart, 57 Am. St. Rep. 452; 9 R. C. L. 63; Fisher v. Clapton, 110 Mo.App. 663, 85 S.W. 623; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324.

If the wife contract away her interest in the property of her husband, the right to administer his estate goes with it.

Re Davis, 106 Cal. 453, 39 P. 736; Kaiser's Estate, 199 Pa. 269, 85 Am. St. Rep. 785; Simmons v. Simmons, 150 Ky. 85, 150 S.W. 59; In re Jeannot, 212 Mich. 442, 180 N.W. 482; Rhoades v. Davis, 51 Mich. 306, 16 N.W. 659; McBreen v. McBreen, 154 Mo. 323, 77 Am. St. Rep. 758.

Marriage contracts are liberally construed to carry out the intention of the parties.

2 L.R.A. 373.

Contracts are construed according to the intention of the parties and the court must place itself as nearly as possible in their situation.

Hart v. Gardner, 74 Miss. 153, 20 So. 877; Waddell v. DeJett, 76 Miss. 104, 23 So. 437.

The Supreme Court of Mississippi has upheld a separation agreement and held that the widow, after entering into the separation agreement, would be barred from inheriting any part of the husband's estate.

Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317; Jones v. Somerville, 78 Miss. 269, 28 So. 940; 1 R. C. L. 935.

Means Johnston, of Greenwood, for appellee.

Agreement of July 7, 1934, does not bar widow's right to inherit her husband's estate, and administer thereon.

Sections 1404 and 1629, Code of 1930; Clark v. Castner et al., 219 N.W. 675; Girard v. Girard, 221 P. 801, 35 A.L.R. 1493.

The rights of inheritance in the property of the husband or wife are not to be denied the surviving spouse on account of a separation agreement, unless the purpose to exclude him or her is expressed or clearly inferable, and then no further than the agreement clearly requires.

Stewart v. Stewart, 7 Johns 229; Beard v. Beard, 22 W.Va. 130; Jones v. Lamont, 118 Cal. 499, 50 P. 766, 52 Am. St. Rep. 251; Kestler v. Ernst, 60 Kan. 243, 56 P. 18; Willis v. Jones, 42 Md. 422; Dennis v. Perkins, 88 Kan. 428, 129 P. 165, 43 L.R.A. (N.S.) 1219; Smith v. Smith, 57 Ohio St. 27, 48 N.E. 28; Coatney v. Hopkins, 14 W.Va. 338; Joradine v. Hester, 122 N.Y.S. 463; Rouse v. Rouse, 70 Kan. 311, 91 P. 45; Williams v. Coffman, 101 S.W. 919; 18 C. J. 857; Hinkle v. Hinkle, 34 W.Va. 142, 11 S.E. 993; Newton v. Truesdale, 69 N.H. 634, 45 A. 646; In re Sellers Estate, 128 P. 334, Ann. Cas. 1914B 1093.

The decree attacked was rendered by a court of general jurisdiction, is regular and valid on its face, and cannot be attacked collaterally.

The presumption of the law is that such judgments are founded upon proper and sufficient evidence, and cannot be collaterally attacked, however insufficient the evidence may have been.

Cason v. Cason, 31 Miss. 578; Cannon v. Cooper, 39 Miss. 784-9; Cocks v. Simmons, 57 Miss. 183; Sadler v. Prairie, 59 Miss. 572; Allen v. Dickens, 63 Miss. 91; Ames v. Williams, 72 Miss. 760; Gillespie v. Hauenstein, 72 Miss. 838; Vicksburg Gro. Co. v. Brennan, 20 So. 845; Railway v. Thomas, 86 Miss. 27; Sweatman v. Dean, 86 Miss. 647; Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B 428.

Decree of chancery court of Clay county is valid and binding on its face.

Frantz v. Frantz, 11 Pa. Co. Ct. 467, 1 Pa. Dist. R. 241; Hews v. Hews, 7 Gray 279; Jones v. Jones, 67 Miss. 195, 6 So. 712, 19 A. S. R. 299.

Appellants are strangers to the proceedings in which said decree complained of was rendered, and had no rights invaded by the rendition of said decree, and cannot complain.

Tyler v. Aspinwall, 54 L.R.A. 758; Baugh v. Baugh, 37 Mich. 59, 26 Am. Rep. 496; Guthery v. Wetzel, 226 S.W. 626; Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, 16 P. 887; Anderson v. Bell, 9 Cal. 321; Elliott v. Wohlfrom, 55 Cal. 384; E. B. V. C. D. (1858), 8 Abb. Pr. (N. Y.) 44.

S. J. Kent, if living, could not attack said decree of divorce.

Werz v. Werz, 11 Mo.App. 26; Ruger v. Heckel, 85 N.Y. 483; Hall v. Hall, 139 A.D. 120, 123 N.Y.S. 1056; Van Slyke v. Van Slyke, 186 Mich. 324, 152 N.W. 921; Smith v. Smith, 186 Ill.App. 540; Kinnier v. Kinnier, 45 N.Y. 535, 6 Am. Rep. 132.

Kent heirs, after his death, cannot attack said decree.

Ellis v. Ellis, 152 Miss. 836, 119 So. 304; Pettiford v. Zoellner, 45 Mich. 358, 8 N.W. 57.

OPINION

McGowen, J.

S. J. Kent, intestate, died on August 3, 1934, by his own hand. On August 6, 1934, Mrs. Una K. Howard and Mrs. Jimmie K. White, sisters of the deceased, filed a petition in the chancery court of Leflore county, seeking to have R. L. Kirby appointed as administrator of the estate of the deceased, S. J. Kent. Upon that petition R. L. Kirby was by the court appointed administrator of the said estate, entered into bond, and qualified as such. It was alleged in the petition that the sisters were next of kin to the deceased; that the said deceased left surviving him his widow, Mrs. S. J. Kent, who, prior to the death of S. J. Kent, disclaimed all interest and rights against the said S. J. Kent, as shown by a copy of an agreement attached to the petition.

On the 31st day of August, 1934, the appellee, Mrs. Grace Harrison Kent, filed her petition alleging that she was the widow of S. J. Kent, deceased, and his sole heir at law, and asserted that, under section 1629, Code 1930, she was entitled to be appointed administratrix of the estate, and that R. L. Kirby should not have been appointed by the court as administrator; that she married S. J. Kent on May 19, 1934, and that they lived together until July 6th of the same year, when he called upon her and announced that he would file a bill for divorce, and desired to make an agreement in settlement of alimony between them. She further alleged that the paper executed by them was simply an agreement as to alimony in anticipation of divorce proceedings, and not an agreement to waive her rights as his widow, either as an heir or the first right to administer his estate. There was an allegation that she and Kent made a collusive agreement as to process to be served upon her and as to remaining away from court. It was also alleged by the appellee that the value of the estate of the deceased was about fourteen thousand dollars. The petitioner, Mrs. Kent, further prayed that Kirby be removed as administrator, that he be required to increase his bond until the estate should be turned over to her, and that letters of administration be granted to her.

The defendants, Mrs. Una K. Howard, Mrs. Jimmie K. White, and R L. Kirby, administrator, appellants here, answered at great length. The gist of the answer is, in effect, that the written agreement signed and acknowledged by Kent and his wife, together with the filing by him of a bill for...