McKie v. McKie, 19809
| Decision Date | 15 October 1957 |
| Docket Number | No. 19809,19809 |
| Citation | 100 S.E.2d 580,213 Ga. 582 |
| Parties | Lillian B. McKIE et al. v. W. H. McKLE, Sr., et al. |
| Court | Georgia Supreme Court |
Lillian J. McKie brought her petition against W. H. McKie, Sr., individually and as executor of the last will and testament of her former husband, Josiah M. McKie, Sr., wherein she alleged that, after approximately fifteen years separation from her husband, she instituted a proceeding for temporary and permanent alimony against him, which action for alimony was settled by a written contract entered into between the parties, copy of which is attached to the petition, and which provided for payment to her of 'the sum of Fifteen Hundred ($1,500.00) Dollars in one lump sum, as a full and complete settlement of temporary and permanent alimony, and all other rights that she might have against party of the second part for and during his natural life'; the conveyance to her of 117 acres of land in Richmond County, Georgia, in which the husband reserved a life estate; the granting of an option to the plaintiff to purchase a described 25 acre tract of land upon the terms and conditions set forth in paragraph 3 of the contract; the payment of a specified sum as fees of the plaintiff's attorney for bringing the alimony proceeding and for services rendered in the preparation and execution of the contract, which provided that it should be approved by the court and made a part of the decree at the final hearing of the case, and should be binding on the parties thereto, their heirs and assigns, upon its execution. Appearing on this contract is the following entry signed by the trial judge: Paragraph 5 of the contract contained the following provisions: 'That although the consideration expressed in this contract shall be a full and complete discharge of all claims for temporary and permanent alimony and all other and future claims and demands of any nature that party of the first part might have against party of the second part as long as he might live, this agreement shall in no way be interpreted as a release and discharge of the party of the first part's right to dower, year support, right to inheritance or any other right that she might have as a widow of party of the second part, in the event that he predeceases her.'
The petition alleges that Josiah M. McKie, Sr., conveyed to W. H. McKie, Sr., the 25 acres of land described in paragraph 3 of the contract for a consideration of $10,000, and that the purchase money, soon after its payment, was returned to the defendant, Josiah M. McKie, Sr., remaining in possession of the land until his death; that Josiah M. McKie, Sr., made a will leaving all his property to the defendant, and departed this life on August 15, 1956, leaving surviving him the plaintiff and three children who were sui juris. It is alleged that the conveyance of the 25 acres of land and the execution of the will were brought about by the fraudulent misrepresentations and scheming on the part of the defendant, and that the defendant and Josiah M. McKie, Sr., entered into a conspiracy between them to deprive the plaintiff of her right of inheritance, of her right to dower, and year's support, and any other right of a widow which is recognized by law, which constituted a fraud on the plaintiff; that the will, upon caveat by the children and the plaintiff, was refused probate in solemn form; that the defendant holds legal title to the 25 acres of land under an implied turst created by law; and the petition prayed that the purported deed conveying the 25 acres to the defendant be set aside; that title thereto be decreed in the estate of Josiah M. McKie, Sr.; that the defendant, both individually and as executor, be restrained and enjoined from disposing of or altering the status of the 25 acre tract of land or any other property acquired by him from Josiah M. McKie, Sr., during the latter's lifetime, or held by him in his representative capacity. By amendment the plaintiff alleged that, since the filing of the original suit, the court of ordinary entered a judgment refusing probate in solemn form of the will of Josiah M. McKie, Sr., and revoking letters testamentary previously issued to the defendant; that the plaintiff was appointed temporary administratrix of the estate of Josiah M. McKie, Sr., and she prayed to be permitted to intervene and to be made a party plaintiff as such temporary administratrix, which was done. To this petition as amended the defendant demurred generally and specially, the grounds of general demurrer necessary to be stated here...
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