Ramsay v. Sims

• Decision Date: 09 June 1952
• Docket Number: No. 17824,17824
• Citation: 209 Ga. 228,71 S.E.2d 639
• Parties: RAMSAY et al. v. SIMS et al.
• Court: Georgia Supreme Court

Page 639

71 S.E.2d 639

209 Ga. 228

RAMSAY et al. v. SIMS et al.

No. 17824.

Supreme Court of Georgia.

June 9, 1952.

Rehearing Denied July 15, 1952.

Syllabus by the Court.

It was the manifest intention of the parties as evidenced by their written contract, which was made the judgment of the court in their divorce action, that the contract should survive the death of the husband, and the court erred in holding that the provisions of the contract for the support of the wife and minor children terminated upon his death.

Fulton National Bank and Mrs. Luise L. Sims, as administrators of the estate of E. H. Sims, deceased, filed a petition in the superior court for direction. The petition alleged that the deceased was first married to Mrs. Luise L. Sims, and during their marriage there was born to them two children, Mrs. Dorothy Sims Maddox and Mrs. Luise Sims Allison. The deceased and Mrs. Luise L. Sims were divorced, and the deceased thereafter married Mrs. Lida Ramsay Sims, and there are two children by this marriage, Lida Elizabeth Sims and Edgar H. Sims, Jr. The deceased and Mrs. Lida Ramsay Sims were divorced, and thereafter the deceased remarried Mrs. Luise L. Sims, with whom he was living as husband and wife at the time of his death. Prior to the final decree of divorce between Mrs. Lida Ramsay Sims and the deceased, they entered into a contract in which it was agreed that certain sums should be paid to Mrs. Lida Ramsay Sims as alimony and for the support of the two minor children. Parts of the contract entered into between Mrs. Lida Ramsay Sims and the deceased are set forth in the petition, and a copy of the contract is attached as an exhibit.

Omitting the formal parts of the contract, wherein Mrs. Lida Ramsay Sims was named as first party, and E. H. Sims as second party, the contract, which was duly executed by both parties, provides:

'1. First Party shall hold free and clear of any and all claims of Second Party of every nature whatsoever the various properties accumlated by said parties while living together as husband and wife, the title to which was placed in First Party.

'2. The household furniture, furnishings and all other property located in the house at 314 Garden Lane, N. W. Atlanta, Georgia, and the automobile now in the possession of First Party shall be the property of First Party and the title to all such is hereby conveyed to her.

'3. Second Party, simultaneously with the execution and delivery of these presents, shall execute and deliver to First Party a warranty deed conveying to her a certain farm of about 385 acres, located in White County, Georgia, the title to which is now in Second Party.

'4. Second Party shall pay to First Party, as alimony for her natural life or until she remarries, the sum of $100 on the 5th day of each month hereafter, beginning June 5, 1950.

'Second Party shall pay to First Party, for the support and maintenance of Lida Elizabeth Sims, the minor child of said parties, the sum of $100 per month until she reaches the age of 21 years, marries or dies, whichever shall first occur. This sum shall be paid on the 5th day of each month hereafter, beginning June 5, 1950.

'Second Party shall pay to First Party, for the support and maintenance of Edgar H. Sims, Jr., the minor child of said parties, the sum of $100 per month, until he reaches the age of 21 years, or dies, whichever shall first occur. This sum shall be paid on the 5th day of each month hereafter, beginning June 5, 1950.

'5. Should at any time large or unexpected or unusual medical expenses be required for the children of said parties because of accident, operations or disease, Second Party shall pay such expenses.

'6. Second Party shall maintain in force, not assign, not borrow against and not change the beneficiaries named in:

'Policy No. 987264 issued by Reliance Life Insurance Co. of Pittsburgh.

'Policy No. 987265 issued by Reliance Life Insurance Co. of Pittsburgh.

'Policy No. 97287 issued by the Volunteer State Life Insurance Company.

'The beneficiary now named in said policies numbers 987264 and 987265 is Mrs. Lida Ramsay Sims. The beneficiary in each of said policies shall be changed to Mrs. Lida Ramsay Sims as Trustee for Lida Elizabeth Sims and shall not thereafter be changed. Said policy number 97287 now names Mrs. Lida Ramsay Sims as second beneficiary. Said policy shall be changed to name Mrs. Lida Ramsay Sims as Trustee for Lida Elizabeth Sims, as second beneficiary and shall not thereafter be changed.

'7. When the minor son of said parties, Edgar H. Sims, Jr., is ready to attend college, policies numbers 987264 and 987265 issued by Reliance Life Insurance Company of Pittsburgh may be surrendered for their cash surrender value and the proceeds of said policies shall be applied toward a college education for said Edgar H. Sims, Jr. Second Party and said Mrs. Lida Ramsay Sims as Trustee of Lida Elizabeth Sims, shall have authority to and shall execute any and all legal instruments necessary to secure to and shall execute any and all legal instruments necessary to secure the application of said policies toward such end. Should the proceeds of said policies not be sufficient to defray the reasonable and necessary expenses of such college education Second Party shall supplement said proceeds in an amount sufficient to obtain such college education for his said son. This obligation shall not expire upon the said Edgar H. Sims attaining his majority.

'8. Second Party has created a trust for the benefit of his minor daughter, Lida Sims, by a trust agreement dated May 13, 1948, in which Fulton National Bank of Atlanta is named Trustee. By the terms of said trust agreement, Second Party's said daughter is to be paid fifty dollars a month, beginning with her 18th birthday and continuing until the principal of said trust is exhausted. Should the said daughter desire to attend college Second Party shall supplement said payments from said trust in an amount sufficient to pay the necessary and reasonable expenses of attending college.

'9. First Party shall transfer and assign to Second Party any and all shares of stock standing in her name in the corporation known as Sims & Sims and Bouldercrest, Inc.

'10. Second Party shall pay the attorneys representing First Party the sum of $750.00 for their services to First Party in effecting this settlement and representing her in said suit referred to hereinabove.

'11. Upon the execution and delivery of this contract, said Second Party shall stand relieved and discharged from any and all liability for alimony, attorney's fees and anything else except the obligations imposed by this contract.

'12. This agreement may be made the judgment of the Court in the suit referred to hereinabove at the instance of either party to said suit.'

Thereafter, by a decree duly entered in the superior court on September 19, 1950, it is provided in part as follows: 'The contract entered into by the parties to this cause on the first day of June, 1950, a copy of which is hereto attached as Exhibit 'A' is incorporated and made a part of this decree as to all matters covered by said contract. The custody of the minor children of the parties to this cause is lodged in Mrs. Lida Ramsay Sims. The defendant, E. H. Sims, shall have the right to see said children at any and all reasonable times. He shall have the privilege of having said children visit him or take trips with him as may be agreed upon by said parties. The right is reserved by the court to control the question of visitation should the parties to this cause be unable to agree upon the reasonableness of the visits and trips.'

George B. Ramsay, Jr. was duly appointed guardian ad litem for the two minor children, Lida Elizabeth Sims and Edgar H. Sims, Jr. He accepted the appointment and filed an answer. Mrs. Lida Ramsay Sims, individually, filed her response to the petition, and Mrs. Luise L. Sims, individually, and Mrs. Dorothy Sims Maddox and Mrs. Luise Sims Allison filed a joint answer.

The petition for direction propounded three questions, only questions 1 and 3 being answered by the decree. These questions were as follows: '(1) Is the final decree in the divorce proceeding hereto attached as Exhibit 'A' awarding $100.00 per month and other sums to each of said minor children during their minority, binding on petitioners as administrators of the estate of E. H. Sims, and are they required to pay said sums for the support of said minors? * * * (3) Is the final decree awarding alimony to the said Lida Ramsay Sims binding on the estate, and are the administrators thereof required to make payment of said sums out of said estate?'

The matter came on regularly for a hearing before a judge without the intervention of a jury, and an order was duly entered in which it was recited that after 'hearing evidence and argument of counsel and considering particularly the doctrine enunciated in Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336, and authorities cited therein, it is considered, ordered and decreed: Questions numbered 1 and 3 propounded to the court in paragraph 9 of the petition be and they are answered in the negative, question number 2 therein requiring no answer.'

George B. Ramsay, Jr., as guardian ad litem for the minor children, Lida Elizabeth Sims and Edgar H. Sims, Jr., and Lida Elizabeth Sims, Edgar H. Sims, Jr., and Mrs. Lida Ramsay Sims, jointly and severally, assign error on the decree.

James A. Branch, Thomas B. Branch, Jr., Atlanta, for plaintiffs in error.

MacDougald, Troutman, Sams & Schroder, Gambrell, Harlan, Barwick, Russell & Smith, M. Cook Barwick, T. M. Smith, James C. Abbot, Atlanta, for defendants in error.

HEAD, Justice.

Counsel for the defendants in error have strongly insisted by brief and in oral argument that the present case is controlled by the rulings of this court in Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336. Counsel for the plaintiffs in error have by brief argued that the Berry case...