Power v. California Bank

BALTHIS, J. — Two minor children, Romina Francesca Power (born October 2, 1951) and Taryn Stefanie Power (born September 13, 1953), by their mother and guardian, [755]Linda Christian Power, sued the executors of the estate of their deceased father, Tyrone Power, on a rejected creditor’s claim for $200,000 for their support after decedent’s death. The claim was predicated upon a covenant contained in a property settlement agreement, dated April 30, 1955, between Linda Christian Power and the decedent. After a trial by the court, sitting without a jury, and upon findings made judgment was entered for the defendant executors from which plaintiffs appeal.

The decedent and Linda Christian Power were divorced Hay 11, 1955; decedent remarried in 1958 and after his death on November 15, 1958, a posthumous son was born. The decedent died testate and his will admitted to probate, after leaving personal effects to his widow, establishes a trust which divides the residue of the estate into five equal shares for (1) plaintiff Bomina, (2) plaintiff Taryn, (3) decedent’s surviving wife, Debra Power, (4) decedent’s sister and (5) decedent’s posthumous child.

The creditor’s claim filed on behalf of plaintiffs Bomina and Taryn was based upon paragraph 8 of the property settlement agreement which reads in part as follows:

“Upon the termination of the alimony period for any reason (including, but not being limited to the remarriage of Wife or the death of Husband) Husband or Husband’s estate, as the ease may be, shall pay to Wife for the support and maintenance of said minor children such sum as the parties may agree at such time to be reasonable for the support of said children according to their station in. life and the ability of Husband to pay at that time, and in the absence of such agreement, any Court of competent jurisdiction shall fix the amount which Husband or his estate shall pay to Wife for said purposes. ’ ’

Another section of the agreement provided that the obligation of husband’s estate to provide for the support and maintenance of said minor children shall not be deemed satisfied by reason of certain insurance required to be maintained by husband.

The trial court made certain findings summarized as follows:

(1) Plaintiffs jointly have received by virtue of provision made for them by their father with insurance and trust funds, moneys and assets in excess of $85,000; this amount is sufficient to provide an annnual income to plaintiffs of $3,825. Plaintiffs also receive as social security payments sums aggregating $1,624. Without taking into consideration other sources