Stone v. Bayley
|75 Wash. 184,134 P. 820
|United States State Supreme Court of Washington
|29 August 1913
|STONE v. BAYLEY.
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.
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:
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: 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,...
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Robinson v. Robinson
...of the courts of other jurisdictions on the question are in sharp conflict. In a note affixed to the case of Stone v. Bayley, Executor, (Wash.) 134 P. 820, 48 L. R. A. (N. S.) 429, it is stated that "this question usually arises, however, in cases of divorce where the mother is given the cu......
Robinson v. Robinson, CC728.
...of the courts of other jurisdictions on the question are in sharp conflict. In a note affixed to the case of Stone v. Bayley, Executor, 75 Wash. 184, 134 P. 820, 48 L.R.A., N.S., 429, it is stated that "this question usually arises, however, in cases of divorce where the mother is given the......
Robinson v. Robinson
...separation without disturbing the marital rights and obligations. 9 R.C.L. 484, § 300; 19 C.J. 360, § 822(5); Murphy v. Moyle, supra; Stone v. Bayley, supra. under modern conditions, the weight of the adjudicated cases is to the effect that such liability of the father is not necessarily te......
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......1111, 114 Am.St.Rep. 656; Murphy v. Moyle, 17 Utah 113, 53 P. 1010, 70 Am.St.Rep. 767; Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007; Stone v. Bayley, 75 Wash. 184, 134 P. 820, 48 L.R.A.,N.S., 429; Silberman v. Brown, Ohio Com.Pl., 72 N.E.2d 267; Garber v. Robitshek, 226 Minn. 398, 33 ......