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ERVIN ESTATE (07/01/68)

decided: July 1, 1968.

ERVIN ESTATE


Appeal from decree of Orphans' Court of Montgomery County, No. 68,075, in re estate of Kenneth D. Ervin, deceased.

COUNSEL

Gilbert P. High, Jr., with him High, Swartz, Roberts & Seidel, for appellant.

J. Brooke Aker, with him Arthur W. Bean, and Bean, DeAngelis, Tredinnick & Giangiulio, and Smith, Aker, Grossman & Hollinger, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 430 Pa. Page 432]

This is an appeal from the decree of the Orphans' Court of Montgomery County, dismissing exceptions to the adjudication. The issue presented is a very narrow one: "Does Paragraph 10 of the November 8, 1959 agreement between appellant, Marybeth G. Ervin, and decedent, Kenneth D. Ervin, represent an obligation of the estate to make annual payments, or does the obligation terminate at Kenneth Ervin's death?"*fn1

On November 8, 1959, decedent and appellant, then his wife, executed an agreement which was supplemented by a second agreement dated November 18, 1959. Subsequently the parties were divorced and the decedent married Elizabeth G. Ervin, who became executrix of his estate. The crucial paragraph is Paragraph 10 of the November 8 agreement, which provides: "10. Husband agrees to pay to Wife for support and maintenance and as alimony, the sum of ten thousand dollars per year, such sum to be paid in monthly payments of $833.33. Such payments shall be regular and periodic, the first payment to be made on November 1, 1959 and to continue until November 1, 1963. On and after November 1, 1963 said annual payments to Wife for support and maintenance and as alimony, shall be reduced to seventy-seven hundred and fifty dollars ($7750.00), which shall be paid in regular periodic monthly payments of $645.84, which payments shall continue until April 1, 1968. On and after April 1, 1968 said annual payments to Wife for support and maintenance and as alimony, shall be reduced to $5500.00 which shall be paid in regular periodic monthly payments

[ 430 Pa. Page 433]

    of $458.33. It is further agreed between the parties that the aforesaid sums shall be paid to Wife in the amounts and at the times designated until her death or prior remarriage, at which time Husband's obligation to pay any amounts to her shall cease and determine."

The facts being agreed to, the only issue was the interpretation of this clause. The court below held that the obligations of decedent ceased at his death. We conclude that the Orphans' Court erred in its interpretation of the agreement.

In the first place, the words of Paragraph 10 itself indicate an intention that the payments continue after decedent's death. The express words of the agreement state that the sums should be paid to appellant "until her death or prior remarriage." In Huffman v. Huffman, 311 Pa. 123, 166 Atl. 570 (1933), this Court faced a similar situation. In a separation agreement, the husband agreed to pay $30 per month to the wife for the support of each of two children, until each child became self-supporting. Subsequently, the wife obtained a divorce and the husband died. When the exwife sued the husband's estate, the administratrix claimed that the obligation terminated at the husband's death. We held: "It is clear beyond question that the agreement has not been fully complied with, since the children are not, as yet, self-supporting. . . . It is . . . idle to say that the agreement was personal between the plaintiff and testator, or that it was intended to terminate at his death. There is nothing in the agreement, or in the surroundings of the parties at the time they made it, from which either conclusion can properly be drawn. As we said in Foundation & Construction Co. v. Franklin Trust Co. et al., 307 Pa. 10, 15: 'The standard for the interpretation of words is their natural meaning to the parties who have contracted at the time and place where the contract is

[ 430 Pa. Page 434]

    made, considering all the circumstances surrounding it: McMillin v. Titus, 222 Pa. 500. . . . Words are to be construed according to their primary acceptation unless, from the context of the instrument and the intention of the parties to be collected from it, they appear to be used in a different sense.' By his agreement, testator agreed to pay the specified sums for the support and maintenance of his minor children, until they became self-supporting, and there is no other language therein which in any way otherwise limits or fixes the time during which the payments are to be made."*fn2 Here decedent agreed to pay ...


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