Taylor v. Gowetz

• Decision Date: 29 May 1959
• Citation: 158 N.E.2d 677,339 Mass. 294,75 A.L.R.2d 1079
• Parties: , 75 A.L.R.2d 1079 Alice E. TAYLOR v. Irene GOWETZ and another, executors. Chester F. PERO, trustee, v. Irene GOWETZ and another, executors.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 677

158 N.E.2d 677

339 Mass. 294, 75 A.L.R.2d 1079

Alice E. TAYLOR v. Irene GOWETZ and another, executors.

Chester F. PERO, trustee, v. Irene GOWETZ and another, executors.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 5, 1959.

Decided May 29, 1959.

Francis H. George, Worcester, for plaintiffs.

James S. Gratton, Worcester (Zipporal (Zipporal B. Wiseman, Boston, with him), for defendants.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ. SPALDING, Justice.

These are two actions of contract to enforce a separation agreement made on May 15, 1946. The parties to the agreement were Alice E. Taylor and Reginald L. Taylor, husband and wife, and two trustees, Pero and Smith, the former acting for the wife and the latter acting for the husband. The agreement recites that Alice and Reginald have a minor child, that they are living separate and apart, that Alice had instituted divorce proceedings against Reginald in the Probate Court for the county of Worcester, and that both desire by the agreement to 'make a complete and final settlement of all matters relating to support, alimony and property rights.' The agreement includes a detailed scheme for the disposition of their assets. The portions of the agreement sought to be enforced by these actions are paragraphs 6 and 8 of article second. Under paragraph 6 'the husband shall pay or cause to be paid to the wife for her support the sum of $500 on the first day of June, 1946, and of each succeeding month if and so long as the wife is living and remains unmarried' (emphasis supplied). Paragraph 8 reads: 'In the event of the death of the husband during the lifetime of the wife and while she is unmarried, the wife shall be paid not less than a net amount of $10,000 from the proceeds of life insurance policies insuring the life of the husband, the premiums on which shall be paid by him, or, if said net amount of $10,000 has not been provided through life insurance, then there shall be paid from his estate a net amount of $10,000.'

Under other provisions of the agreement the wife released all her rights in the property of the husband, including rights of dower, homestead, and surviving spouse. It was provided that 'the husband may by will or deed or otherwise dispose of all real and personal property now owned or hereafter acquired by him as if he were unmarried * * *.' The agreement also provided that 'The wife hereby accepts the provisions herein made for her in lieu of any and all other claims, rights and provisions for her past, present and future maintenance, or alimony and covenants that she will not make any further claim on him for support, maintenance or alimony, or in any way demand contribution from him or claim any interest in his property or in his estate in the event of his death. She further releases and relinquishes any and all claims and rights that she may have or hereafter acquire to act as executrix or administratrix of his estate.'

On the libel of Alice a divorce decree nisi was entered by the Probate Court for Worcester County on May 24, 1946. The decree recited that the separation agreement had been shown to the court and for that reason no provision for alimony or support was included in the decree.

The monthly instalments of $500 were regularly paid to Alice from June 1, 1946, to September 12, 1955, the date of Reginald's death. No monthly payments have been made since. Reginald died testate. On January 9, 1956, Robert S. Bowditch, one of the executors under the will of Reginald, forwarded a check for $1,000 to Alice. In an accompanying letter he stated that the check was a payment against the $10,000 due her under the separation agreement 'without any prejudice to any other claim you may have against * * * [Reginald] or his estate.'

Alice was remarried on October 4, 1957.

To enforce paragraphs 6 and 8 of the agreement two actions of contract were brought. ¹ Count 1 of each declaration is to recover the $500 monthly payments under paragraph 6 from September 12, 1955 (the date of Reginald's death), to October 31, 1956, with interest. Under count 2 of each declaration recovery was sought for the $10,000 allegedly due under the eighth paragraph of the agreement less the $1,000 paid on account plus interest.

The cases were tried to a judge of the Superior Court who found for the plaintiff in each case on counts 1 and 2. The cases come here by report. The questions reported are these:

(1) 'Under the evidence, rulings and findings * * * was I obliged as a matter of law to find for the defendants on count 1? On count 2?'

(2) 'As a matter of law, did any or all of my rulings on evidence constitute prejudicial error? If so, was there such prejudicial error as to entitle the defendants to a new trial?'

1. The defendants argue that the judge erred in finding for the plaintiff on the first count of each declaration because the intention of the parties to the separation agreement was that the monthly payments of $500 would terminate on the death of Reginald.

This court has held that liability for alimony imposed by a decree of court ceases with the death of the husband if the decree is silent on the subject of continuation. Knapp v. Knapp, 134 Mass. 353, 355; Stone v. Duffy, 219 Mass. 178, 182, 106 N.E. 595. But in Southard v. Southard, 262 Mass. 278, 280-281, 159 N.E. 512, it was said that the cases cited above 'merely decided that payments were not to extend beyond the life of the * * * [husband] when the decree was silent on the subject. * * * [The parties] * * * agreed upon the amount and extent of alimony. The court could in these circumstances decree that the alimony should extend beyond the lifetime of the * * * [husband].' To the same effect is Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 181 N.E. 779. There can be no doubt, then, that the parties could provide by contract for the continuation of payments after the death of the husband. All this the defendants concede, but they argue that under the agreement here the monthly payments to the wife were to cease upon the husband's death.

The provision of the agreement dealing with the monthly payments states that they are to continue 'so long as the wife is living and remains unmarried.' Nowhere in the agreement is there an express limitation of the obligation to make the payments to the lifetime of the husband. In these respects the agreement is strikingly similar to the decree construed in Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 181 N.E. 779, 780. There the decree ordered...