Prime v. Prime

• Decision Date: 29 June 1943
• Citation: 139 P.2d 550,172 Or. 34
• Parties: PRIME v. PRIME ET AL.
• Court: Oregon Supreme Court

172 Or. 34

139 P.2d 550

PRIME v. PRIME ET AL.

Supreme Court of Oregon.

Argued June 1, 1943.

Modified June 29, 1943.

Action

1. Where divorced wife, seeking declaratory judgment, claimed that estate of divorced husband was obligated to continue to pay her sums fixed by separation agreement until her death or remarriage and claim was contested by divorced husband's children, executor and widow, a "justiciable controversy" existed.

Executors and administrators

2. Although testator's children were ones chiefly interested in question whether property settlement, approved by court order in divorce action, was enforceable claim against testator's estate and children admitted validity of claim, executor properly presented question to court.

Contracts

3. Courts do not ordinarily remake agreements of private parties.

Divorce

4. A divorce decree respecting obligation of party at fault to contribute to maintenance of the other constitutes a "final determination" from which appeal may be taken but it may be modified as to the future on suitable showing of changed circumstances.

Divorce

5. Where agreement of parties, approved as fair in divorce decree, provides for division of property and for payment of future installments for maintenance, although both provisions are included in same instrument they may be treated as separable so that the provision for division of property becomes binding and cannot be modified by court, but a provision concerning future installments for maintenance is subject to modification in event of changed circumstances.

Divorce

6. Where divorce decree approves agreement providing for payment of future installments for maintenance the parties are deemed to have contracted in view of statute authorizing modification of decree in event of changed conditions.

Divorce

7. The right to receive alimony and corresponding duty to pay it are generally considered to have terminated on death of either of the two parties, at least where no statute to the contrary exists and judgment is silent on the subject.

Divorce

8. Where contract provided for payment to wife of $35 per month until her death or remarriage and divorce decree approved settlement stating that the settlement should forever remain binding on the parties, the provision for monthly payments was a severable one in the nature of "alimony" and was, during the life of the husband, subject to modification on proof of changed conditions.

Divorce

9. In absence of contract, divorce court does not have power by decree to bind deceased husband's estate to pay alimony.

Divorce

10. The same tests which determine power of court to modify executory provision of divorce decree during life of parties also determines whether such decree shall bind estate of husband after his death.

Divorce

11. Where provision of divorce decree requiring payment of $35 per month for life of divorced wife was supported by contract but had not been shown to be payment for any property of wife in nature of an annuity and was not approved by court as such but was a stipulation for payment in nature of alimony subject to modification during the life of the parties, the obligation terminated on death of the husband and was not an enforceable claim against his estate.

Wills

12. Where mutual wills of husband and wife disposed of their joint estate one item of which was described as "life insurance", the will was ambiguous so that testimony was admissible to identify life insurance referred to as insurance in life of husband.

Wills

13. Where husband and wife owned realty, as tenants by entirety, which wife was unwilling to place in trust with remainder to husband's children unless husband's life insurance, which was payable to husband's children, was also made part of trust fund, husband by failing to provide that proceeds of his life insurance should go into the joint estate breached the contract thereby releasing wife from any obligation thereunder so that the wife as survivor of tenancy by entirety become owner in fee of realty.

Contracts

14. A breach or non-performance of promise by one party to bilateral contract, so material as to justify refusal of other party to perform contractual duty, discharges that duty.

                  See 17 Am. Jur. 471
                  27 C.J.S., Divorce, § 240
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

Declaratory judgment action by Velma E. Prime against Mary Jean Prime, a minor, by Glenn E. Prime, Jr., her guardian ad litem, and Glenn E. Prime, Jr., individually, the Pioneer Trust Company, executor of the last will and testament of Glenn E. Prime, deceased, and Edith B. Prime, individually, Pioneer Trust Company, and Edith B. Prime, as trustees under the last will and testament of Glenn E. Prime, deceased. From a decree, the plaintiff and Mary Jean Prime, a minor, by Glenn E. Prime, Jr., her guardian ad litem, and Glenn E. Prime, Jr., individually, appeal and the Pioneer Trust Company, executor of the last will and testament of Glenn E. Prime, deceased, cross-appeals.

MODIFIED.

George A. Rhoten, of Salem (Rhoten & Rhoten and Sam F. Speerstra, all of Salem, on the brief) for appellants.

Robin D. Day, of Salem, for Pioneer Trust Co., respondent and cross-appellant.

John H. Carson, of Salem (Carson, Carson & Carson, of Salem, on the brief) for Edith B. Prime, respondent.

In this case the plaintiff, Velma E. Prime, seeks a declaratory judgment establishing the validity of her claim against the estate of Glenn E. Prime, deceased, for the amount of $35 per month for the period of her life or until she remarries, adjudicating that Edith B. Prime has assumed and become liable for all such payments due and to become due, establishing the validity of the will of Glenn E. Prime and requiring the defendants, Edith B. Prime and the Pioneer Trust Company, to set up a trust estate in accordance with the terms of said will and for further relief.

Concerning plaintiff's continuing claim for $35 a month, it is sufficient to say the undisputed evidence upon the issues as made up by the pleadings raises a single but important question of law.

The plaintiff, Velma E. Prime, and Glenn E. Prime, now deceased, were husband and wife and were the parents of Mary Jean Prime and Glenn E. Prime, Jr., defendants and appellants herein. On April 12, 1930, Velma E. Prime filed suit for divorce. On August 6, 1930, the parties to that suit entered into a written agreement in anticipation of divorce. That agreement recites that the parties are husband and wife and the parents of two children, that differences have arisen and that the parties are now living apart,

"* * * and it is regarded by both parties hereto as being proper and expedient that a full, final and complete property settlement be had and made between them, and the parties hereto have agreed thereon, and on the amount thereof."

The agreement is attached as an exhibit to the complaint and provides for the conveyance to the plaintiff of real property owned by defendant and the payment to her or for her benefit of substantial sums of money. The money was placed in escrow to be delivered to plaintiff in the event that a decree of divorce approving the property settlement was rendered. Then follows the paragraph which is in issue here and which reads as follows:

"3. The first party shall pay to the second party, beginning September 1, 1930, the sum of $35.00 per month until the death or re-marriage of the second party, whichever shall happen the sooner."

Paragraph 8 and 9 are as follows:

"8. The settlement herein provided to be paid and rendered by the first party to the second party is taken and received by the second party as a full, final and complete property settlement made and had with full disclosure to her of the financial worth and condition of the first party, and said sums and property so paid and rendered are taken and accepted by the second party in full payment of all alimony, suit money, support, maintenance, court costs and attorney's fees and of all other claims and demands of a financial nature that the second party can or might assert against the first party because of or growing out of said marriage relation now and heretofore existing between the parties hereto.

"9. It is understood and agreed that in the event that a divorce shall be granted to either of the parties hereto that included in the decree of such case and made a part thereof shall be the substantial provisions of this property settlement, and both parties agree that such may be included in said decree and be made thereby a part of the record in such case."

Thereafter the cause was tried, and on August 22, 1930, a decree of divorce was entered at the suit of the plaintiff. The decree provided:

"It is further ordered, adjudged and decreed by the Court that all of the property rights of the above named plaintiff and defendant have been settled between the parties to this suit, and it now appearing to the Court that said settlement was fair and regular, the same is hereby ratified, confirmed and approved, and that said settlement shall forever remain binding upon the parties to this suit."

The plaintiff, Velma E. Prime, has never remarried. Glenn E. Prime during his lifetime made the monthly payments of $35 as they accrued. He died on the 20th day of April, 1941, and in June, 1941, the plaintiff filed her claim with the defendant, Pioneer Trust Company, executor of the last will and testament of Glenn E. Prime, deceased. The said executor rejected the claim.

It appears that a justiciable controversy exists between the plaintiff and the defendants, Pioneer Trust Company and Edith B. Prime, in that the plaintiff claims that the estate of Glenn E. Prime is obligated to continue to pay to the plaintiff the sum of $35 a month until her death or remarriage, which claim is contested by said defendants. The plaintiff asserts...