It was the manifest intention of the parties as evidenced by their written contract, which was made the judgment of the court in their divorce action, that the contract should survive the death of the husband, and the court erred in holding that the provisions of the contract for the support of the wife and minor children terminated upon his death.
Fulton National Bank and Mrs. Luise L. Sims, as administrators of the estate of E. H. Sims, deceased, filed a petition in the superior court for direction. The petition alleged that the deceased was first married to Mrs. Luise L. Sims, and during their marriage there were born to them two children, Mrs. Dorothy Sims Maddox and Mrs. Luise Sims Allison. The deceased and Mrs. Luise L. Sims were divorced, and the deceased thereafter married Mrs. Lida Ramsay Sims, and there are two children by this marriage, Lida Elizabeth Sims and Edgar H. Sims Jr. The deceased and Mrs. Lida Ramsay Sims were divorced, and thereafter the deceased remarried Mrs. Luise L. Sims, with whom he was living as husband and wife at the time of his death. Prior to the final decree of divorce between Mrs. Lida Ramsay Sims and the deceased, they entered into a contract in which it was agreed that certain sums should be paid to Mrs. Lida Ramsay Sims as alimony and for the support of the two minor children. Parts of the contract entered into between Mrs. Lida Ramsay Sims and the deceased are set forth in the petition, and a copy of the contract is attached as an exhibit.
Omitting the formal parts of the contract, wherein Mrs. Lida Ramsay Sims was named as first party, and E. H. Sims as second party, the contract, which was duly executed by both parties, provides:
"1. First Party shall hold free and clear of any and all claims of Second Party of every nature whatsoever the various properties accumulated by said parties while living together as husband and wife, the title to which was placed in First Party.
"2. The household furniture, furnishings and all other property located in the house at 314 Garden Lane, N. W., Atlanta, Georgia, and the automobile now in the possession of First Party shall be the property of First Party and the title to all such is hereby conveyed to her.
"3. Second Party, simultaneously with the execution and delivery of these presents, shall execute and deliver to First Party a warranty deed conveying to her a certain farm of about 385 acres, located in White County, Georgia, the title to which is now in Second Party.
"4. Second Party shall pay to First Party, as alimony for her natural life or until she remarries, the sum of $100 on the 5th day of each month hereafter, beginning June 5, 1950.
"Second Party shall pay to First Party, for the support and maintenance of Lida Elizabeth Sims, the minor child of said parties, the sum of $100 per month until she reaches the age of 21 years, marries or dies, whichever shall first occur. This suit shall be paid on the 5th day of each month hereafter, beginning June 5, 1950.
"Second Party shall pay to First Party, for the support and maintenance of Edgar H. Sims Jr., the minor child of said parties, the sum of $100 per month, until he reaches the age of 21 years, or dies, whichever shall first occur. This sum shall be paid on the 5th day of each month hereafter, beginning June 5, 1950.
"5. Should at any time large or unexpected or unusual medical expenses be required for the children of said parties because of accident, operations or disease, Second Party shall pay such expenses.
"6. Second Party shall maintain in force, not assign, not borrow against and not change the beneficiaries named in: Policy No. 987264 issued by Reliance Life Insurance Co. of Pittsburgh. Policy No. 987265 issued by Reliance Life Insurance Co. of Pittsburgh. Policy No. 97287 issued by the Volunteer State Life Insurance Company. The beneficiary now named in said policies numbers 987264 and 987265 is Mrs. Lida Ramsay Sims. The beneficiary in each of said policies shall be changed to Mrs. Lida Ramsay Sims as Trustee for Lida Elizabeth Sims and shall not thereafter be changed. Said policy number 97287 now names Mrs. Lida Ramsay Sims as second beneficiary. Said Policy shall be changed to name Mrs. Lida Ramsay Sims as Trustee for Lida Elizabeth Sims, as second beneficiary and shall not thereafter be changed.
"7. When the minor son of said parties, Edgar H. Sims Jr., is ready to attend college, policies numbers 987264 and 987265 issued by Reliance Life Insurance Company of Pittsburgh may be surrendered for their cash surrender value and the proceeds of said policies shall be applied toward a college education for said Edgar H. Sims Jr. Second Party and said Mrs. Lida Ramsay Sims as Trustee of Lida Elizabeth Sims, shall have authority to and shall execute any and all legal instruments necessary to secure to and shall execute any and all legal instruments necessary to secure the application of said policies toward such end. Should the proceeds of said policies not be sufficient to defray the reasonable and necessary expenses of such college education Second Party shall supplement said proceeds in an amount sufficient to obtain such college education for his said son. This obligation shall not expire upon the said Edgar H. Sims attaining his majority.
"8. Second Party has created a trust for the benefit of his minor daughter, Lida Sims, by a trust agreement dated May 13, 1948, in which Fulton National Bank of Atlanta is named Trustee. By the terms of said trust agreement, Second Party's said daughter is to be paid fifty dollars a month, beginning with her 18th birthday and continuing until the principal of said trust is exhausted. Should the said daughter desire to attend college Second Party shall supplement said payments from said trust in an amount sufficient to pay the necessary and reasonable expenses of attending college.
"9. First Party shall transfer and assign to Second Party any and all shares of stock standing in her name in the corporation known as Sims & Sims and Bouldercrest, Inc.
"10. Second Party shall pay the attorneys representing First Party the sum of $750.00 for their services to First Party in effecting this settlement and representing her in said suit referred to herein above.
"11. Upon the execution and delivery of this contract; said Second Party shall stand relieved and discharged from any and all liability for alimony, attorney's fees and anything else except the obligations imposed by this contract.
"12. This agreement may be made the judgment of the Court in the suit referred to hereinabove at the instance of either party to said suit."
Thereafter, by a decree duly entered in the superior court on September 19, 1950, it is provided in part as follows: "The contract entered into by the parties to this cause on the first day of June, 1950, a copy of which is hereto attached as Exhibit 'A' is incorporated and made a part of this decree as to all matters covered by said contract. The custody of the minor children of the parties to this cause is lodged in Mrs. Lida Ramsay Sims. The defendant, E. H. Sims, shall have the right to see said children at any and all reasonable times. He shall have the privilege of having said children visit him or take trips with him as may be agreed upon by said parties. The right is reserved by the court to control the question of visitation should the parties to this cause be unable to agree upon the reasonableness of the visits and trips."
George B. Ramsay Jr. was duly appointed guardian ad litem for the two minor children. Lida Elizabeth Sims and Edgar H. Sims Jr. He accepted the appointment and filed an ansWer. Mrs. Lida Ramsay Sims, individually, filed her response to the petition, and Mrs. Luise L. Sims, individually, and Mrs. Dorothy Sims Maddox and Mrs. Luise Sims Allison filed a joint answer.
The petition for direction propounded three questions, only questions 1 and 3 being answered by the decree. These questions were as follows: "(1) Is the final decree in the divorce proceeding hereto attached as Exhibit 'A' awarding $100.00 per month and other sums to each of said minor children during their minority, binding on petitioners as administrators of the estate of E. H. Sims, and are they required to pay said sums for the support of said minors? . . . (3) Is the final decree awarding alimony to the said Lida Ramsay Sims binding on the estate, and are the administrators thereof required to make payment of said sums out of said estate?"
The matter came on regularly for a hearing before a judge without the intervention of a jury, and an order was duly entered in which it was recited that, after "hearing evidence and argument of counsel and considering particularly the doctrine enunciated in Berry v. Berry, 208 Ga. 285
, and authorities cited therein, it is considered, ordered and decreed: Questions numbered 1 and 3 propounded to the court in paragraph 9 of the petition be and they are answered in the negative, question number 2 therein requiring no answer."
George B. Ramsay Jr., as guardian ad litem for the minor children, Lida Elizabeth Sims and Edgar H. Sims Jr., and Lida Elizabeth Sims, Edgar H. Sims Jr., and Mrs. Lida Ramsay Sims, jointly and severally, assign error on the decree.
Counsel for the defendants in error have strongly insisted by brief and in oral argument that the present case is controlled by the rulings of this court in Berry v. Berry, 208 Ga. 285
(66 S. E. 2d, 336). Counsel for the plaintiffs in error have by brief argued that the Berry case is not controlling, since it is readily distinguish able upon its facts. In oral argument counsel for the plaintiffs in error insisted that the court should overrule, or decline to follow, the Berry case, even if in point on its facts, it being contended that the decision in the Berry case is not sound and does not follow the weight of authority.
The decision in the Berry case follows the general rule that, where alimony is awarded solely to the wife by a decree of court, and the decree does not specifically provide that the alimony payments shall continue after the death of the husband, the wife's claim for alimony is terminated upon his death. See Berry v. Berry, supra; Murphy v. Shelton, 183 Wash. 180 (48 Pac. 2d, 247); Birnstill v. Birnstill, 218 Ark. 130 (3) (234 S. W. 2d, 757); Allen v. Allen, 111 Fla. 733 (150 So. 237); Yoss v. Olerich, 237 Iowa 1092 (24 N. W. 2d, 399); Borton v. Borton, 230 Ala. 630 (162 So. 529); Parker v. Parker, 193 Cal. 478 (225 Pac. 447); Roberts v. Higgins, 122 Cal. App. 170 (9 Pac. 2d, 517); 27 C.J.S. 999, 1000, 240 (b); 17 Am. Jur. 473, 608; 18 A. L. R. 1045; 50 A. L. R. 232; 101 A. L. R. 324.
The provisions of our statutory law as codified in Chapter 30-2 of the Code have been many times construed by this court, and in at least two instances the rulings made are in accord with the decision in Berry v. Berry, supra. In Deaderick v. Deaderick, 182 Ga. 96 (185 S. E. 89), there was no divorce between the parties, and the award of alimony to the wife was for her natural life. The verdict and judgment in the Deaderick case were attacked by the husband as being illegal, void, and contrary to law, in that the verdict and judgment could not lawfully provide for the payment of alimony to the wife after she had remarried. It was held in division 3 of the opinion, on the assignment of error above set forth, that when the husband died, the wife would then have the right to remarry, and her right to alimony would cease.
In Buffington v. Cook, 147 Ga. 681 (95 S. E. 214), the wife was awarded a monthly sum of alimony for a limited period of time. The decree of the court provided that the wife should recover of the husband the whole amount for the "full time. The wife died, and it was held that her administrator could not recover the unpaid instalments. The rule in Buffington v. Cook, supra, was overruled in Wise v. Wise, 156 Ga. 459 (119 S. E. 410), only in so far as the Buffington case might be construed as providing for a lump-sum payment to the wife.
In Brown v. Farkas, 195 Ga. 653 (25 S. E. 2d, 411), it was said that Buffington v. Cook, supra, did not rule upon the legality of a lump-sum award for the benefit of the wife, but, if in conflict with the ruling in the Brown case, it would not be followed. The ruling in Buffington v. Cook, supra, in so far as it applies to monthly instalments of alimony, has not been overruled, nor has the full-bench decision in Deaderick v. Deaderick, supra, been overruled or modified by any subsequent decision.
The personal view of the writer that Buffington v. Cook, supra, and Deaderick v. Deaderick, supra, in principle support the ruling in the Berry case, is not material to a proper determination of the question now before the court. This is not a case based solely upon a decree which provides specifically for the payment of alimony after the death of the husband. Generally, such a decree may be enforced. Farrington v. Boston Safe Deposit &c. Co., 280 Mass. 121 (181 N. E. 779); Stratton v. Stratton, 77 Me. 373; Creyts v. Creyts, 143 Mich. 375 (106 N. W. 1111); 18 A. L. R. 1050; 50 A. L. R. 241.
In the present case, the husband and wife, while living in a bona fide state of separation, entered into a written contract settling all issues between them as to alimony, a division of property, and support for the two minor children of the parties. Under the provisions of the contract, the wife was to convey to the husband certain stock. It is stipulated that she has fully complied with the terms of the contract. The contract as executed by the parties was made the decree of the court by reference to a copy duly attached to the decree. A valid and enforceable contract may be made by a husband and wife, where they are living in a bona fide state of separation, settling all issues as to alimony for the wife, and providing for the support of minor children. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga. Supp. 99; Coffee v. Coffee, 101 Ga. 787 (28 S. E. 977); Sumner v. Sumner, 121 Ga. 1 (48 S. E. 727); Melton v. Hubbard, 135 Ga. 128 (68 S. E. 1101); Watson v. Brunley, 150 Ga. 460 (104 S. E. 220); Brown v. Farkas, supra. Where such a contract is made, providing for the settlement of questions pertaining to the joint property, and provision is made for the support of minor children, it is a general rule that such contracts are valid and enforceable after the death of the husband.
"There is no sound reason why the estate of the father should not be charged with the obligation to provide support for his minor children after his death. Thus, it has been held that where an obligation is assumed by a father in connection with a divorce to contribute a certain amount per month and toward the support of his child, the payment to continue during its minority, but to cease upon its earlier death, such obligation is binding on his estate." 17 Am. Jur. 536, 706. See 101 A. L. R. 328, 329; 109 A. L. R. 1061.
It has been held by this court that, after a decree for permanent alimony is entered, and the term of court at which such decree was entered has passed, it can not be amended or modified by the trial judge. Coffee v. Coffee, supra; Wilkins v. Wilkins, 146 Ga. 382 (91 S. E. 415); Gilbert v. Gilbert, 151 Ga. 520 (107 S. E. 490); Torras v. McDonald, 196 Ga. 347, 350 (26 S. E. 2d, 598); Fuller v. Fuller, 197 Ga. 719, 723 (30 S. E. 2d, 600); Kirkland v. Kirkland, 200 Ga. 873, 875 (38 S. E. 2d, 836); Chandler v. Chandler, 204 Ga. 40 (48 S. E. 2d, 841); Varble v. Hughes, 205 Ga. 29, 31 (52 S. E. 2d, 303); Burch v. Kenmore, 206 Ga. 277, 279 (56 S. E. 2d, 508); Yarborough v. Yarborough, 290 U.S. 202, 209 (54 Sup. Ct. 181). And it has been held that the parties by subsequent contract can not modify the terms of the decree so as to affect adversely the interest of minor children.
Whether or not a decree for alimony based upon and pursuant to the terms of a contract between the parties should be construed as extending beyond the scope of a decree of the court where no contract is involved, is not an open question, under the decisions of this court.
In Coffee v. Coffee, supra, the wife was awarded $5 per month for the support of minor children. The husband filed a motion to modify the decree, to which the wife filed a demurrer. The trial court overruled the demurrer, and upon review this court, held: "The allowance for the support of these children rested upon a contract which, receiving the sanction of the court by judicial decree, imposed upon the husband the responsibility with which he was already charged by law, namely the support of the children. He voluntarily surrendered his parental control to the wife, and voluntarily agreed to make this provision for the support of the children. By contract she personally discharged his estate from all liability to her upon account of any claim of dower or year's support, and this voluntary surrender of these rights was subsequently confirmed by the grant of the divorce which as effectually cut her off from all right to demand any portion of her husband's estate upon account of dower or year's support as though she had never been married to him. She became, by virtue of this decree, in her capacity as trustee for her minor children, a judgment creditor, and the court could no more vacate that judgment so rendered in her favor than it could vacate a judgment rendered against the husband in favor of a creditor of his upon any other account. Whatever right of revision of this decree may have existed was extinguished by the grant of the total divorce. The decree granting this divorce definitely settled the right of the wife with respect to any claim she may have had upon the husband's estate growing out of the married relation, and left her as a judgment creditor only. In the present case, the parties dispensed with a jury trial upon the question of an allowance of permanent alimony, and by consent invoked a decree of the court fixing the allowance upon the terms stated in the decree. This consent having been approved by the court in which the cause was pending after the grant of the divorce, the court loses control over the subject, and the decree stands as other judgments against the husband." (Italics ours.) See 58 A. L. R. 634.
From the record in Caudle v. Caudle, 181 Ga. 144 (181 S. E. 669), it appears that Lucy Garwood Caudle and her husband, G. E. Caudle, entered into a written contract, wherein it was stipulated that the parties were living in a bona fide state of separation, and the husband agreed to pay, and the wife to accept, $25 per month as alimony, to continue until the death or marriage of the wife. Thereafter the husband remarried, and later died. The former wife brought an action against his widow, individually, and as executrix of his estate, and prayed that the court determine and fix the priority of her claim for alimony. It was held that the case was one arising by contract, and that, regardless of the validity of the alimony decree, and although the plaintiff might not be entitled to recover the present value of the contract based on expectancy, she was entitled to recover the monthly instalments which had not been paid at the time the petition was filed, and that it therefore stated a cause of action. One Justice dissented, on the ground that it was not an action to recover monthly instalments due and unpaid, but was an action to fix the present cash value of the contract.
Under the rulings in Coffee v. Coffee, supra, and Caudle v. Caudle, supra, this court has followed the general rule that contracts for the payment of alimony should be given full force and effect, and continue for the period provided by the contract, which may be beyond the death of the husband. Stone v. Bayley, 75 Wash. 184 (134 Pac. 820); Southard v. Southard, 262 Mass. 278 (159 N. E. 512); In re Golding's Estate, 216 N. Y. S. 593; Allen v. Allen, supra; Storey v. Storey, 125 Ill. 608 (18 N. E. 329); Yoss v. Olerich, supra; Parker v. Parker, supra; Newman v. Burwell, 216 Cal. 608 (15 Pac. 2d, 511); Miller v. Superior Court of Los Angeles, 9 Cal. 2d, 733 (72 Pac. 2d, 868).
Contracts in settlement of claims for alimony and support of minor children stand upon the basis of other contracts to the extent that they are subject to construction by the court. In construing such contracts the intention of the parties should be arrived at and given effect. Code, 20-702; Brown v. Farkas, supra. From the language of the contract in the present case, which is plain and specific, it was unquestionably the intention of the parties that the support for the minor children named in the contract should continue until their majority, and the language of the contract will not sustain any other construction. This is evidenced by the provision with reference to certain insurance policies, in which the wife is made beneficiary for the benefit of the children. It is further evidenced by the provision that the husband is to supply additional funds in the event the daughter should desire to attend college. As a matter of contract the parties intended that the minor children should be provided four until they become of age, and the contract so stipulates. Any argument that, might be made that, if it was intended that the contract should continue after the death of the husband, it should have so stated, is met by the proposition that a definite time was fixed in the contract, to wit, the majority of the children. If it was intended that the contract would terminate upon the death of the husband, it should have so stated. Green v. Starling, 203 Ga. 10, 15 (45 S. E. 2d, 188). No limitation as to time, other than the majority of the minor children (except the marriage or death of the wife as to the alimony provision for her, see White v. Murden, 190 Ga. 536, 9 S. E. 2d, 745), having been imposed by the contract, it should be enforced both as to the provisions for the wife and the children. Standing as a decree of the court, rendered upon a valid contract, it is beyond the power of any court to modify or change it, and it is just as binding as any other judgment might be, under the ruling in Coffee v. Coffee, supra. The parties settled their differences in a manner which the law approves. Their contract was not destroyed by the death of the husband, or by the fact that the settlement made between the parties has the sanction of a court of record.
CANDLER and HAWKINS, Justices, concurring specially. We concur in the judgment, but not for the reasons stated in the opinion. A contract could not possibly have any greater efficacy than a solemn judgment and decree of the court. Our reasons for concurring in the judgment here are stated in the dissenting opinion filed in Berry v. Berry, 208 Ga. 285
(66 S. E. 2d, 336).