White v. White

• Citation: 42 S.E.2d 537,210 S.C. 336
• Decision Date: 06 May 1947
• Docket Number: 15945.
• Parties: WHITE v. WHITE.
• Court: South Carolina Supreme Court

42 S.E.2d 537

210 S.C. 336

WHITE v. WHITE.

No. 15945.

Supreme Court of South Carolina

May 6, 1947

Appeal from Common Pleas Circuit Court, of Greenville County; J. Robert Martin Jr., Judge.

Action by Ernestine White against Sadie B. White, executrix of the will of John R. White, deceased, to recover certain monthly alimony payments allegedly due under the terms of a separation agreement entered into by plaintiff and the deceased, while husband and wife, and to establish plaintiff's further right to receive monthly payments of alimony from the deceased's estate. From a judgment in favor of the plaintiff, the defendant appeals.

The master's report and the circuit judge's decree follow.

Master's Report

The above matter was referred to me under a general consent order of reference. The action was instituted by a Summons and verified Complaint wherein the plaintiff seeks to collect from the defendant the sum of $75 per month from November 1942, based on a written Agreement and Divorce Decree. The Agreement and Decree were both attached to the Complaint and made a part thereof as exhibits.

The plaintiff contends that under said Agreement dated October 1 1930, and the Divorce Decree dated January 16, 1931, that her former husband John R. White was due to pay her $75 per month for her support and maintenance, and admitted that he had made all payments from the date of the agreement to November 1942. It is alleged that he died testate January 16, 1944, and that the defendant, his second wife is the duly qualified executrix of his estate. Demand was made on the defendant for the payment of said sum, and also a claim was duly filed with the Probate Court.

The answer of the defendant admits practically all of the complaint, except denies that defendant is indebted to the plaintiff for any sum, and alleges further that the plaintiff released her former husband some time in 1942, from liability to make any further payments under the Agreement and Divorce Decree.

Some three references were held and certain testimony taken, which is transmitted herewith. At the first reference no testimony was taken, but only certain papers introduced in evidence which were the original Separation Agreement and a certified copy of the Divorce Decree. The parties agreed that in lieu of these that the attached copies to the Complaint would be used during any further proceedings in this case.

The issue made by the pleadings and recognized by the parties are briefly stated as follows:

1. Is the defendant indebted to the plaintiff for the monthly payments provided in the agreement? This can be divided into two questions.

A. Is the plaintiff entitled to collect the monthly payments from November 15, 1942, to January 16, 1944, the date of the death of Mr. White?

B. Is the plaintiff entitled to collect anything under the agreement subsequent to the death of Mr. White?

2. Did the plaintiff some time in 1942, release her former husband, John R. White, from further liability to make payments under the Agreement and Divorce Decree?

There is a further issue, which was not clearly raised by the defendant until after oral argument, and was contained in his written brief filed in the case. The defendant asked leave to amend her answer, or to have same treated as amended, to conform with the proof to allege a mutual mistake. This issue will be discussed later.

I find all of the material allegations of the complaint to be substantially true and correct, and see no need to detail same in this report, for in fact, the answer admits all of the allegations of the complaint except that portion where the plaintiff alleges that the defendant is indebted to her.

I find further, that some time during the fall of 1930 that the plaintiff and her former husband, John R. White, recognized that their relationship of husband and wife had become disagreeable, and that both parties mutually agreed to enter into a separation agreement. The plaintiff according to the weight of the testimony, and same was not denied by the defendant, was represented during her negotiations with her husband by John L. Plyler, Esq., a former eminent member of this Bar. The late Mr. White was represented by P. A. Bonham, Esq., an eminent member of this Bar. Both parties were sui juris, and were persons of mature age and judgment. In addition, they were represented by exceptionally capable counsel. This is borne out by the clear and very comprehensive Agreement signed by the parties.

I find further, that the late Mr. White complied with the Agreement and Divorce Decree by paying to the plaintiff the $75 per month provided therein up to November 15, 1942. The parties agreed that this was the correct date.

I find further, that the late Mr. White complied with all of the requirements of the Separation Agreement and Divorce Decree in so far as same pertains to the plaintiff with the exception of the payment of the monthly maintenance of $75, and that said parties obtained an absolute decree of divorce, which is recognized by the parties hereto.

As I view the case, a decision of same is necessarily based primarily, if not conclusively, on the written Agreement and the Divorce Decree which adopted and confirmed same. This Agreement in my opinion, contains no ambiguity whatsoever. A casual reading will show that the intention of the parties was clearly expressed. In fact, there is no testimony whatsoever that same was ever questioned by the plaintiff or the late Mr. White. The disposition of the case is therefore controlled by the express terms of the Agreement and Divorce Decree. Our Court has only recently had occasion to pass on a situation in principal analogous to the question here. In the case of McPherson v. J. E. Sirrine & Company, 206 S.C. 183, 33 S.E.2d 501, 509; where the Court says: 'In construing and determining the effect of a written contract, the intention of the parties and the meaning are gathered primarily from the contents of the writing itself, or, as otherwise stated, from the four corners of the instrument, and when such contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning cannot be given it other than that expressed. Hence words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. Where the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and with intention.'

The Court further 33 S.E.2d at page 510 of the Southeastern Reporter says: '* * * when it is found that the language of the contract covers the matter in controversy, the issue is decided by merely applying the language of the contract to the facts.'

The Court on the same page says further:

'It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves.'

'Parties sui juris bind themselves by their lawful contracts, and Courts cannot alter them because they work a hardship. The rights of the parties must be measured by the contract which they themselves made.'

The second issue enumerated above, and Subdivision A of the first issue are so closely connected, that in my opinion they can be disposed of together. Certainly the plaintiff is entitled to collect the monthly payments of $75 from November 15, 1942, to January 16, 1944, unless the plaintiff released the late Mr. White from his liability to make such payments. I conclude from the testimony that there was no such release. The only witness testifying on this point was Mrs. Lewis, a witness for the defendant, and her testimony negatives any such defense. Further, there was no showing of any consideration for such a release.

The next question is whether plaintiff is entitled to collect any thing under the agreement and Divorce Decree subsequent to the death of Mr. White. The quotations from the McPherson case, supra, are apropos. The Separation Agreement states that the parties being fully advised of all their rights 'do solemnly agree and bind themselves, their heirs, executors, administrators and assigns forever to the following articles of agreement and covenant.' The next to the last paragraph of the agreement recognizes that the parties--'bind themselves, their heirs, executors, administrators and assigns forever * * *'

Paragraph 4 of the Agreement recognizes that the late Mr. White agreed to pay the plaintiff $75 per month for her maintenance 'and to pay the same each and every month so long as Ernestine White lives or until she remarries.' The Divorce Decree specifically adopts, confirms and approves the written contract or separation agreement as the valid and subsisting contract of the parties. The judgment of the Court under the Decree of Divorce says: 'And further, Ordered, Adjudged and Decreed that defendant pay to the plaintiff the monthly sum of Seventy-five ($75.00) Dollars, for plaintiff's support and maintenance and as alimony, such payments to commence on this 16th day of January, 1931 and to continue thereafter on the 16th day of each and every month, during the plaintiff's natural life or until she remarries.'

I conclude that there is no ambiguity in the contract or divorce decree.

I conclude that there is no ambiguity in the contract. The provisions of the agreement were to be binding on themselves, their heirs, executors, administrators and assigns, and they intend that it should be so binding whereby the plaintiff was to receive from the late Mr. White or his Estate $75 per month so long as the plaintiff should live or until she should remarry.

The authorities in support of this conclusion are collected in two...