Smith v. Smith

• Decision Date: 20 April 1929
• Docket Number: No. 19204.,19204.
• Citation: 166 N.E. 85,334 Ill. 370
• Parties: SMITH v. SMITH.
• Court: Illinois Supreme Court

334 Ill. 370

166 N.E. 85

SMITH

v.SMITH.

No. 19204.

Supreme Court of Illinois.

April 20, 1929.

Error to First Branch, Appellate Court, First District, on Error to Superior Court, Cook County; Joseph Sabath, judge.

Action by Frances Evelyn Smith against Carl E. Smith. From an adverse judgment, defendant brings error.

Reversed and remanded, with directions.

Egbert Robertson, of Chicago (Church, Haft, Robertson & Crowe, of Chicago, of counsel), for plaintiff in error.

Roy C. Woods and John H. Bishop, both of Chicago (Roy S. Gaskill, of Chicago, of counsel), for defendant in error.

CROW, C.

On October 3, 1922, Frances E. Smith obtained a decree for divorce from her husband, Carl E. Smith, in the superior court of Cook county on the ground of desertion. There were no children, and a decree was entered by agreement and consent of the parties adjusting their property rights. After the decretal order dissolving the bonds of matrimony the decree provides, in substance, that it appears to the court, and the court so finds, from the admissions of the parties in open court and from the testimony, that subsequent to the determination of the court to enter such decree of divorce the complainant and defendant reached an agreement regarding the question of alimony and the adjustment of property rights between them; that, with the consent of the parties given in open court, it is further decreed that the defendant, Carl E. Smith, upon the entry of this decree, forthwith pay to the complainant the sum of $3,000 in cash, and at the same time, upon the entry of this decree, shall assign, transfer, convey, and deliver to complainant a certain first mortgage for $6,500 on the premises known as No. 6002 Kenmore avenue, in the city of Chicago, and that the defendant shall pay to the complainant, as and for solicitor's fees in this case, the sum of $1,500 upon the entry of the decree; that the defendant pay to the complainant the sum of $250 on the entry of the decree, and commencing on November 11, 1922, and thereafter on the 11th day of each and every month, pay to the complainant, as and for alimony, the sum of $250 per month as long as the complainant lives and remains unmarried; that, with the consent of the parties aforesaid, to secure the payment each month of said sum the defendant shall assign, transfer, and deliver a certificate or certificates for 50 shares of the capital stock of some corporation to be agreed upon by the parties, to some corporation trustee, to be held by said corporation in trust for the purpose of securing the prompt payment of said sum each month to the complainant by the defendant. Said trustee shall hold said stock as long as the complainant shall live and be unmarried, except as herein provided. In the event of her death or remarriage before the death of the defendant, the stock shall be by said trustee assigned, transferred, and delivered to him. In the event of his death before her death, she not having remarried subsequent to the entry of this decree, the stock shall be assigned, transferred, and delivered to her, to be hers absolutely, in lieu of the monthly payments of alimony which would accrue if he were living; that he shall be entitled to the dividends on said stock, provided that at the time of the payment of the same the stock had not before then been transferred to the complainant, as provided herein in case of default. The defendant shall have the privilege at any time to terminate the trust and have the stock redelivered to him upon paying to the complainant the sum of $35,000 in cash in addition to any alimony due and unpaid, and in that event the monthly alimony provided for herein shall cease. In the event that the defendant shall be in default in the payment of any installment or installments of alimony, or any part thereof, and such default shall continue for 30 days after written notice thereof given by the trustee to him by mail addressed to his last known address, then the complainant shall have the option of terminating this trust, and upon her election so to do the trust shall terminate, and all of the shares of stock shall by the trustee by assigned, transferred, and delivered to her, and be received by her in lieu of alimony accruing or becoming due subsequent to the transfer of said stock, at which time the monthly installment of alimony shall cease; and until the complainant shall elect to exercise her option to terminate the trust, as above provided, the defendant shall continue to pay to the complainant the monthly installment of alimony as in the decree provided. With the consent of the parties the provisions made for alimony to the complainant are in full settlement and adjustment of all the property rights between the parties and all claims of every kind, either for or on account of any property of either which during the marriage relation reached the hands of the other, and that the same is also in lieu of all dower, which is hereby released, of the complainant in the real estate of the defendant and in any distributive share which she might have in his estate, and the decree shall operate as a release of any marital rights of every kind on the part of the complainant in and to the property of any and every kind that the defendant now has or may hereafter acquire, except as herein provided.

Mrs. Smith testified, inter alia: ‘In the event that the court grants me a decree, we have settled our property rights. He is to give me $3,000 in cash, a $6,500 mortgage on the property at 6002 Kenmore avenue, and $250 a month alimony, the first payment on the entry of the decree, the next payment on the next 11th, and each ensuing month. That alimony is to be secured by 50 shares of stock to be put in escrow. Mr. Smith is to draw the dividend on them if the alimony is paid up, and if I die or remarry the stock is to go to Mr. Smith. If he dies before me, it is to be delivered to me as my own property. The furniture that I have in my possession is to be mine, and bills that accrue to the entering of the decree are to be paid by Mr. Smith, and he is to pay storage on furs and furniture up to December 17.’

On July 21, 1926, Mrs. Smith filed a petition in the superior court for a modification of the decree. In was filed as of the number of the original case in equity, reciting the filing of the bill and the entry of the decree for divorce on October 3, 1922, setting out the decree for divorce and settlement of property rights, and averring that it was in full settlement of property rights of the parties to the suit. The petition set out in extenso the trust agreement with the Northern Trust Company, and averred:

‘Upon the execution of said decree complainant and defendant executed a collateral trust agreement with the Northern Trust Company of Chicago, Illinois, in contemplation of performing and fulfilling the terms of said decree, which agreement is as follows: “The Northern Trust Company, Chicago, Illinois:

“Gentlemen-We beg to hand you herewith certificate No. 113 for fifty shares of the capital stock of the W. W. Kimball Company, of the par value of $100 per share, owned by Carl E. Smith, one of the undersigned, but issued to him under the name of E. C. Smith, and by him indorsed in blank, which said certificate is transferred and delivered to you, as trustee, to secure the proper and full payment by the said Carl E. Smith to Frances E. Smith, as long as she lives and remains unmarried, of the sum of $250 each month as and for alimony, as provided for in a certain decree of divorce entered in the superior court of Cook county the second day of October, 1922, a copy of which decree is hereto attached and made a part hereof. You are hereby authorized and directed to hold the said certificate of stock for the purposes of this trust, and in the event of any default in the payment of any installment or installments of alimony, or any part hereof, as provided for in the said decree, and such default shall continue for thirty days after written notice from said Frances E. Smith to you, and by you given to the said Carl E. Smith by mail addressed to his last known address, then the said Frances E. Smith shall have the option of terminating this trust, and upon her election so to do the said trust shall terminate and all of the said shares of stock shall by you, as said trustee, be assigned, transferred and delivered to the said Frances E. smith and be received by her in lieu of all alimony accruing or becoming due subsequent to the transfer of said stock, at which time the monthly installment of alimony as herein and in said decree provided shall cease; and until the said Frances E. Smith shall elect to exercise her option to terminate the trust as above provided, the said Carl E. Smith shall continue to pay to her the monthly installment of alimony as in said decree provided. In the event of the death of said Carl E. Smith, leaving him surviving said Frances E. Smith, she not having married since the entry of said decree, then ahd in that event you are authorized and directed to assign, transfer and deliver to the said Frances E. Smith all of said stock as shall be then held by you as trustee, to be hers absolutely, in lieu of the monthly payments of alimony that the said Frances would have received if the said Carl were living, and the said trust shall then terminate. You are hereby authorized and directed, in the event of the death of said Frances E. Smith or her remarriage, to assign, transfer and deliver said stock to the said Carl E. Smith. It is expressly provided and agreed between the parties that the said Carl E. Smith shall have the right and privilege at any time to terminate said trust and have the said stock assigned, transferred and delivered to him, upon his paying to the said Frances E. Smith the sum of $35,000 in cash, in addition to any alimony due and unpaid. * * *”

The petition to have the decree opened avery that in accordance with the trust...