Stone v. Bayley

• Citation: 75 Wash. 184,134 P. 820
• Court: United States State Supreme Court of Washington
• Decision Date: 29 August 1913
• Parties: STONE v. BAYLEY.

134 P. 820

75 Wash. 184

STONE v. BAYLEY.

Supreme Court of Washington

August 29, 1913

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Luvilla J. Stone against Frank S. Bayley, executor of John W. Stone, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Willis B. Herr, of Seattle, for appellant.

Geo McKay and Thos. B. MacMahon, both of Seattle, for respondent.

ELLIS J.

On October 19, 1910, John W. Stone and Luvilla J. Stone were husband and wife. An action was then pending between them for a divorce, instituted by Luvilla J. Stone in the superior court of King county. The issue of the marriage of the parties was a female child then of the age of six years; they also owned property of the value of $8,000 or $9,000. For the purpose of providing for the support and custody of the child mentioned, and of settling their property rights, in case a divorce should be granted in the pending suit, the following agreement was entered into between them:

'This agreement, made and entered into this 19th day of October, 1910, by and between Luvilla J. Stone, plaintiff above named, party of the first part, and John W. Stone, the defendant, party of the second part, the respective counsel for said plaintiff and defendant concurring therein, witnesseth: That, whereas, the party of the first part, as plaintiff, has in the above-entitled action begun an action for a divorce against the party of the second part, as defendant, and for certain property division, alimony, custody, and maintenance of the minor child of parties; and, whereas, said parties desire to settle, and adjust amicably, certain of the matters arising out of said action, now, therefore, it is hereby mutually agreed by and between the parties hereto as follows, to wit: (1) That said decree may award the care, custody, and control of the minor child of the parties hereto to said first party. (2) That party of the second part shall and will forthwith, upon the filing of the divorce decree in said action, pay to first party, through her counsel, the sum of fifteen hundred dollars ($1,500) cash, the same to be in lieu of all alimony, costs, suit money, and interest in the property, either real or personal, of the community or of second party, and that first party will execute any deed or other release desired by second party's counsel touching title to said property. (3) That second party shall and will on the day said decree is filed and monthly thereafter, and on or before the 15th day of each and every month, pay to said first party, solely for the support and maintenance of said minor, the sum of twenty-five dollars ($25), said payments to continue during the minority of said child, but to cease upon her earlier death, and that, in case of the sickness or injury by accident of said minor, second party will pay such further reasonable and proper charges as may be incurred in her care and on her behalf in excess of said twenty-five dollars ($25.00) monthly, or such accumulation as may accrue in addition to said monthly payments, provided, however, that such additional payments shall be made only upon the presentation of bills duly certified by claimants. (4) It is understood and agreed that, in view of the agreement herein reached and made by and between the parties hereto with reference to the payment of the amounts hereinabove set forth at the times and in the manner stated, the same need not and shall not be incorporated in the decree to be entered in said divorce action, but shall be as binding upon the party of the second part and shall have the like force as though the same were set forth and contained in said decree. (5) That said second party shall have the right to visit said minor child at reasonable and proper times, and with her consent to have her visit his home at reasonable times for a reasonable period. In witness whereof, the parties hereto have hereunto set their hands and seals in duplicate at Seattle, Washington, this 19th day of October, 1910.'

Later on in the same day, after a hearing by the court, a divorce was granted at the suit of Luvilla J. Stone; the decree for which awarded her the custody of the minor child, but made no provision for its support, nor any disposition of the property of the parties, nor did it contain any reference to the foregoing agreement. John W. Stone paid to Luvilla Stone the cash agreed to be taken in lieu of alimony and suit money, and during the few months he lived after the decree paid the monthly allowances provided for in the agreement for the support of the minor daughter. John W. Stone had been married prior to his marriage with Luvilla J. Stone, and has as the issue of his first marriage four daughters, three of whom were under the age of majority at the time the divorce decree was entered.

John W. Stone died on January 3, 1911, leaving a will, in which he named Frank S. Bayley, the appellant in this proceeding, as his executor. By the terms of his will he left to the children of his first wife certain life insurance amounting to $2,000, to be divided between them share and share alike; to his daughter by his second wife $1,000, under the direction that the sum named should be paid to Thomas H. Stein, as trustee, to hold until his daughter should reach the age of 20 years, when it should be paid over to her with the increment thereof. No provision was made for the support of this daughter during her minority in case of his death. The residue of his property he also directed to be conveyed to Stein, as trustee, to be held for the benefit of the daughters by his first marriage, the income of the same to be applied to their support and maintenance during their infancy, and the principal with any increase to be turned over to the these children by the first wife on their reaching the age of majority. It appeared that the whole estate in the executor's hands, including the life insurance, was of the value of $9,000. Stone at the time of his death was working for a salary of $175 a month.

After Stone's death no payments for the support of the daughter of the second marriage were made to Luvilla J. Stone under the contract set forth, and on January 30, 1912, she presented to the executor a claim for the installments then due thereunder, aggregating $300, and a few days later presented a claim for $3,150; being the amount claimed as necessary to meet the future installments as they became due under the contract. The executor rejected the claims, and the present proceeding was instituted to establish the same as claims due and payable from the property of the estate in the hands of the executor. After a hearing the court entered the following judgment: 'It is considered, and the court does hereby adjudge and decree, as follows: (1) That the sum of four hundred ninety and 83/100 dollars ($490.83) for the period beginning on the 15th day of January, 1911, and ending on the 4th day of September, 1912, be allowed and established as an unconditional claim in favor of the plaintiff and against the said estate, and that the said claim be paid in due course of administration of the said estate. (2) That the plaintiff's claim from the 4th day of September, 1912, and thereafter during the minority of said child, on condition that plaintiff maintain and support said child, be allowed and approved as an established claim against said estate, to be paid to plaintiff on the conditions aforesaid, at the rate of twenty-five dollars ($25.00) per month, on the 15th day of each and every month, and to be paid in the due course of administration of said estate. (3) That plaintiff recover her costs and disbursements to be taxed and to be paid in due course of administration of said estate.' From the judgment so entered this appeal is prosecuted.

The argument of counsel is directed to the single question, Did the obligation of the contract to pay the monthly allowance for the support of the minor child survive the death of the promisor? Unless this contract is contrary to public policy or in contravention of some statutory enactment, the question must be determined by the intention of the parties to be gathered from the contract. That it was the intention of the parties that the contract should survive, in case the child survive, cannot be questioned. The words, 'said payments to continue during the minority of said child, but to cease upon her earlier death,' leave no room for other construction. The death of the child during minority is the only terminating contingency specifically recognized in the instrument. There is no hint that the obligation of the contract should be contingent also upon the promisor's survival. That the father himself recognized this as a continuing provision for the support of this child is evidenced by the fact that in his will he provided for the support of his other children during their minority, yet made no such testamentary provision for this child's support, though making bequests in trust for all of his children to fall into their possession with the increment after they shall severally attain their majority. The only modifying element in the contract is found in the stipulation that it 'shall be as binding upon the party of the second part and shall have the like force and effect as though the same were set forth and contained in said decree' (of divorce). If, therefore, such a provision, had it been set out in the decree itself, would have been valid and surviving, there can be no question that the contract is valid, and that the obligation survives. That such a provision for the support of a minor child, when contained in the decree of divorce, survives as against the husband's estate, subject only to the future orders of the court,...