Smith v. Smith

Decision Date31 August 1977
Docket NumberNo. 49500,49500
PartiesJames Rogers SMITH, III v. Stephanie Cortner SMITH.
CourtMississippi Supreme Court

Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Cleveland, for appellant.

John L. Hatcher, Hatcher & Westerfield, Cleveland, for appellee.

Before PATTERSON, C. J., SUGG and BROOM, JJ., and NEVILLE, C.

WILLIAM NEVILLE, Commissioner, for the Court: 1

This matter was tried in the Second Judicial District Chancery Court of Bolivar County upon petition of Stephanie Cortner Smith (appellee) for injunctive relief and modification of a prior decree, et cetera, and upon the answer and crossbill of James Rogers Smith, III (appellant). Mr. Smith appeals and Mrs. Smith cross appeals from the decree of the lower court. We reverse in part and affirm in part.

A divorce was granted to Stephanie Cortner Smith on June 26, 1973, from the appellant, James Rogers Smith, III. Prior to said decree, appellant and appellee entered into a written agreement requesting the chancery court to incorporate the terms and provisions thereof in its final decree, which was done. Under terms of this written agreement, appellant was to pay appellee $1400 per month ($800 child support, and $600 alimony). As security for payment of the alimony and child support, appellant assigned to appellee by assignment dated June 29, 1973 the proceeds of two trusts (the J. R. Smith Trust and the Sarah George Smith Trust) established by his parents, wherein appellant and his sister were named beneficiaries.

In October 1974, by agreement among trustees and beneficiaries of the two trusts, appellant was made sole beneficiary of the J. R. Smith Trust and his sister sole beneficiary of the Sarah George Smith Trust. All of the assets of the J. R. Smith Trust were transferred to the Sarah George Smith Trust in exchange for payment by the Sarah George Smith Trust to the J. R. Smith Trust the sum of $312,759. This consideration was in the form of three promissory notes: one payable December 5, 1974, in the amount of $30,000; a second payable January 2, 1975, in the amount of $32,759; a third in the amount of $225,000, bearing eight percent interest, payable in ten annual installments of $26,286, beginning on December 30, 1975, and subsequent payments due on the 30th day of December of each year until final payment on December 30, 1984. These notes then constituted the corpus of the J. R. Smith Trust.

At the time of the transfer of these trust assets and the receipt of the notes, an amendment to the agreement assigning security for payment of appellant's child support was signed by appellee and appellant. This amendment read as follows:

NOW, THEREFORE, the said James R. Smith, III, as Trustee of the James R. Smith Trust, and individually, does hereby transfer, assign and deliver to Stephanie Cortner Smith any funds which he may receive as beneficiary of the aforesaid trust created by the aforementioned trust agreement, as security for the payment of the alimony and child support described in the original Assignment dated June 29, 1973. After application of said funds to the payment of the aforesaid alimony and child support, the remainder thereof shall be paid to James R. Smith, III, as previously provided, and this additional Assignment shall have no effect on the powers and rights of James R. Smith, III, as Trustee, and is given solely as security for the payment of the aforesaid alimony and child support.

The promissory note of $225,000 was delivered to the Cleveland State Bank for collection pursuant to a "receipt and agreement" wherein the Cleveland State Bank acknowledged receipt of said note for collection and agreement to abide by the terms of the said October 12, 1974, agreement. This instrument signed by the Cleveland State Bank stated, "the assignment as security for the payment of alimony and child support is intended to provide security for said period of ten years." The instrument signed by...

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7 cases
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Superior Court
    • August 13, 2001
    ...216, 500 P.2d 56 (1972); Bowling v. Robinson, 332 S.W.2d 285 (Ky.1960); Wooddy v. Wooddy, 258 Md. 224, 265 A.2d 467 (1970); Smith v. Smith, 349 So.2d 529 (Miss.1977); Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731 (1950) (en banc); Bailey v. Bailey, 86 Nev. 483, 471 P.2d 220 (1970); Dupuis ......
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Supreme Court
    • August 26, 2003
    ...467, 472 (1970) (without statutory authority or contract, courts have no right to adjust property rights of individuals); Smith v. Smith, 349 So.2d 529, 531 (Miss.1977) (child support terminates upon death of father unless written agreement binds estate); Gardine v. Cottey, 360 Mo. 681, 230......
  • East v. East
    • United States
    • Mississippi Supreme Court
    • August 13, 1986
    ...to pay periodic alimony ceases upon his wife's remarriage or his death. Wray v. Wray, 394 So.2d 1341 (Miss.1981); Smith v. Smith, 349 So.2d 529 (Miss.1977); Vaughan v. Vaughan, 226 Miss. 153, 83 So.2d 821 (1955); East v. Collins, supra; and Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933......
  • In re Estate of Hodges, No. 2001-CA-00030-SCT.
    • United States
    • Mississippi Supreme Court
    • February 14, 2002
    ...to have the obligator's periodic payments survive death and, therefore, continue as a binding obligation upon his estate. Smith v. Smith, 349 So.2d 529, 531 (Miss.1977); In re Estate of Kennington, 204 So.2d 444, 449 ¶ 20. However, in Sheppard, this Court expanded the rationale of Peacocke ......
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