Summary
applying this rule in interpreting an agreement for alimony
Summary of this case from Hardman v. HardmanOpinion
19809.
ARGUED SEPTEMBER 9, 1957.
DECIDED OCTOBER 15, 1957.
Injunction. Before Judge Anderson. Richmond Superior Court. June 13, 1957.
Maurice Steinberg, for plaintiffs in error.
Cumming, Nixon Eve, contra.
1. Where, during the life of her husband, the wife separates from him and assumes a relationship of separation, she is to all intents and purposes sui juris, and may institute suit for alimony if she so elects; and where permanent alimony is either granted by judgment of a court, or the alimony suit is settled by contract between the parties, whereby she accepts money or property in settlement of the claim for permanent alimony, and such contract is not annulled by subsequent cohabitation and reconciliation, under applicable law it bars her of her rights of dower and year's support from her husband's estate, and she ceases to have any further interest in his estate in her right as wife. Code § 30-218; Stewart v. Stewart, 43 Ga. 294; Harris v. Davis, 115 Ga. 950 ( 42 S.E. 266); Gore v. Plair, 173 Ga. 88 ( 159 S.E. 698); Berry v. Berry, 208 Ga. 285 ( 66 S.E.2d 336); Hall v. First Nat. Bank of Atlanta, 89 Ga. App. 853 ( 81 S.E.2d 522).
2. While a contract in settlement of a claim for alimony stands upon the same basis as other contracts to the extent that it is subject to construction by the court, and, in the construction thereof, the intention of the parties should be arrived at and given effect, if "it contravenes no rule of law" (Code § 20-702; Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411; Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639), "The laws which exist at the time and place of the making of a contract, enter into and form a part of it" ( West End Atlanta Street R. Co. v. Atlanta Street R. Co., 49 Ga. 151 (5), Horton v. Johnson, 192 Ga. 338, 347, 15 S.E.2d 605; Dorsey v. Clements, 202 Ga. 820, 824, 44 S.E.2d 783, 173 A.L.R. 509); and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter, "and they cannot, by agreement or otherwise, make any other law applicable in determining either the nature, validity or interpretation of the contract." Federal Land Bank of Columbia v. Shingler, 174 Ga. 352 (3) ( 162 S.E. 815). See also Robinson v. Reynolds, 194 Ga. 324 ( 21 S.E.2d 214); Orkin Exterminating Co. of South Ga. v. Dewberry, 204 Ga. 794, 809 ( 51 S.E.2d 669); and compare Finch v. Finch, 213 Ga. 199 ( 97 S.E.2d 576). Thus where, as here, a wife enters into a contract with her husband in settlement of her suit for temporary and permanent alimony while living separate and apart from him, whereby she agrees to and does accept a stated amount of money "in one lump sum, as a full and complete settlement of temporary and permanent alimony, and all other rights that she might have against [the husband] party of the second part for and during his natural life," and thereby, under the law existing at the time, bars her rights of dower and year's support and any other interest in the estate of her husband in her right as wife — a further provision of the contract that it shall not be interpreted as having the effect which the law gives it is void. She cannot have her cake and eat it too, or prohibit and prevent an interpretation of the contract by the courts in accordance with the law applicable thereto.
3. Under the foregoing rulings, the plaintiff's petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrer thereto. The fact that the plaintiff in her representative capacity as temporary administratrix of her husband's estate intervened as party plaintiff does not save the petition as against the general demurrer. As intervenor she takes the case as she finds it, and "`Since the petition was insufficient and must fall because no cause of action is alleged therein, the intervention must likewise fall and meet the same fate as the petition.'" Romar Acceptance Corp. v. Parham, 213 Ga. 223 (3) ( 98 S.E.2d 615).
Judgment affirmed. All the Justices concur, except Wyatt, P. J., and Mobley, J., who dissent.
ARGUED SEPTEMBER 9, 1957 — DECIDED OCTOBER 15, 1957.
Lillian J. McKie brought her petition against W. H. McKie, Sr., individually and as executor of the last will and testament of her former husband, Josiah M. McKie, Sr., wherein she alleged that, after approximately fifteen years separation from her husband, she instituted a proceeding for temporary and permanent alimony against him, which action for alimony was settled by a written contract entered into between the parties, copy of which is attached to the petition, and which provided for payment to her of "the sum of Fifteen Hundred ($1,500.00) Dollars in one lump sum, as a full and complete settlement of temporary and permanent alimony, and all other rights that she might have against party of the second part for and during his natural life"; the conveyance to her of 117 acres of land in Richmond County, Georgia, in which the husband reserved a life estate; the granting of an option to the plaintiff to purchase a described 25-acre tract of land upon the terms and conditions set forth in paragraph 3 of the contract; the payment of a specified sum as fees of the plaintiff's attorney for bringing the alimony proceeding and for services rendered in the preparation and execution of the contract, which provided that it should be approved by the court and made a part of the decree at the final hearing of the case, and should be binding on the parties thereto, their heirs and assigns, upon its execution. Appearing on this contract is the following entry signed by the trial judge: "The above and foregoing contract is hereby approved and ordered made the judgment of the court at the final hearing of Case No. 5715 of the Superior Court of Richmond County, Georgia. This 29th day of May, 1950." Paragraph 5 of the contract contained the following provisions: "That although the consideration expressed in this contract shall be a full and complete discharge of all claims for temporary and permanent alimony and all other and future claims and demands of any nature that party of the first part might have against party of the second part as long as he might live, this agreement shall in no way be interpreted as a release and discharge of the party of the first part's right to dower, year support, right to inheritance or any other right that she might have as a widow of party of the second part, in the event that he predeceases her."
The petition alleges that Josiah M. McKie, Sr., conveyed to W. H. McKie, Sr., the 25 acres of land described in paragraph 3 of the contract for a consideration of $10,000, and that the purchase money, soon after its payment, was returned to the defendant, Josiah M. McKie, Sr., remaining in possession of the land until his death; that Josiah M. McKie, Sr., made a will leaving all his property to the defendant, and departed this life on August 15, 1956, leaving surviving him the plaintiff and three children, who were sui juris. It is alleged that the conveyance of the 25 acres of land and the execution of the will were brought about by the fraudulent misrepresentations and scheming on the part of the defendant, and that the defendant and Josiah M. McKie, Sr., entered into a conspiracy between them to deprive the plaintiff of her right of inheritance, of her right to dower, and year's support, and any other right of a widow which is recognized by law, which constituted a fraud on the plaintiff; that the will, upon caveat by the children and the plaintiff, was refused probate in solemn form; that the defendant holds legal title to the 25 acres of land under an implied trust created by law; and the petition prayed that the purported deed conveying the 25 acres to the defendant be set aside, that title thereto be decreed in the estate of Josiah M. McKie, Sr., that the defendant, both individually and as executor, be restrained and enjoined from disposing of or altering the status of the 25-acre tract of land or any other property acquired by him from Josiah M. McKie, Sr., during the latter's lifetime, or held by him in his representative capacity. By amendment, the plaintiff alleged that, since the filing of the original suit, the court of ordinary entered a judgment refusing probate in solemn form of the will of Josiah M. McKie, Sr., and revoking letters testamentary previously issued to the defendant; that the plaintiff was appointed temporary administratrix of the estate of Josiah M. McKie, Sr., and she prayed to be permitted to intervene and to be made a party plaintiff as such temporary administratrix, which was done. To this petition as amended the defendant demurred generally and specially, the grounds of general demurrer necessary to be stated here being: (1) that there are no grounds for an equitable suit set forth in the said petition; and (2) that the plaintiff has no interest in the property, the conveyance of which she has prayed to have set aside.
To the judgment sustaining the general demurrer and dismissing the petition the plaintiff excepts.