Burr v. Crellin

WHITE, P. J.

Defendant husband appeals from a judgment against him for breach of an agreement between himself and his former wife, now deceased, for the support of said wife and their children, for the settlement of their property rights and for the mutual release of all their claims against each other. Their agreement originally consisted of two documents dated and signed by them on June 1, 1934, and entitled “Property Settlement, Agreement for Support and Mutual Release” and “Supplemental Agreement” respectively.

On March 18, 1935, and while they were husband and wife, another “Property Settlement, Agreement for Support and Mutual Release” was made by them. It cancelled and superseded the “Property Settlement, Agreement for Support and Mutual Release” of June 1, 1934, and provided that the Supplemental Agreement of June 1, 1934 “shall remain in full force and effect in conjunction with this agreement.”

The “Property Settlement, Agreement for Support and Mutual Release” included provisions for the support of plaintiffs who were the then wife and minor children of defendant. The amount of support payable monthly was conditioned upon the marital status of the wife, the minority of the respective children, and the continued life of each. Payments having been made as required to be made to the wife until she re

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married and then died, and to the two children until each became 21 years of age, there are no further payments to he made under that agreement.

This action was commenced by defendant’s former wife and his two children. His former wife, Yvonne Barbee died and Clyde R Burr, as executor of her estate was substituted as a plaintiff. The action is for moneys claimed to be due under the supplemental agreement, from which the following paragraph is quoted:

“1. Subject to the maximum amounts hereinafter fixed, if at any time, or from time to time, the monthly income of First Party from any and all gifts, trusts, devises, bequests or inheritances, given, created, or left to him, or from any other sources other than his own earnings, after deducting all taxes required to be paid on account of same, shall exceed twice the amount required at such time to be paid by First Party under the agreement and property settlement first above mentioned, then the First Party will pay twenty-five per cent (25%) of such excess as long and as often as such excess continues in three (3) equal parts to Second Party and each of the two children of the parties, Anne Crellin and Edward Crellin, as long as all three remain living, except as hereinafter provided. Such sums shall be in addition to the amount of money which First Party is obligated to pay under the terms of the property settlement agreement, agreement for support and mutual release. For the purpose of determining the amount of First Party’s said income the amount of income from any property acquired from such sources but disposed of by him in any manner shall be included in the computation.”