BERRY v. BERRY

Mrs. Remel Horne Berry, as administratrix of the estate of Dr. Goebel D. Berry, filed in Lamar Superior Court, against Mrs. Margaret Berry and others, a petition seeking a declaratory judgment under the provisions of Code (Ann. Supp.), § 110-1101 et seq., to adjudicate whether the estate of Dr. Berry should pay to a former wife alimony instalments that accrued after his death; and whether certain War Savings Bonds, in which Dr. Berry's two oldest sons were co-owners, were gifts to them, or whether the bonds should be treated as advancements in the distribution of their father's estate. Dr. Berry died on August 29, 1949, and the petitioner is his widow. The other defendants are minor children of Dr. Berry, and their guardians.

On October 28, 1928, Dr. Berry and Mrs. Margaret Berry intermarried, and they were divorced on March 1, 1943. The defendants, Charles D. Berry, 20 years old, Donald W. Berry, 19 years old, and David Berry, 16 years old, are the children of this marriage. The defendants, Goebel Berry, 3 years old, Edmond Berry, 2 years old, and George Berry, 1 year old, are the children of his marriage with the petitioner. The divorce decree required Dr. Berry to pay Mrs. Margaret Berry $25 a month as permanent alimony as long as she remained unmarried. Mrs. Margaret Berry is demanding that the petitioner, as administratrix of the estate of Dr. Berry, pay her monthly alimony under the decree for instalments which accrued subsequently to the death of Dr. Berry. Upon the death of Dr. Berry, certain United States War Savings Bonds, which had not been delivered to Charles D. Berry, and to Donald W. Berry, during the lifetime of their father, were found among his personal effects. The purchase of the bonds was over and above the maintenance, support, and education of the sons, as their father was providing these for them; and while the bonds had not been physically delivered to his sons during the lifetime of their father, he purchased the bonds with his own funds and so informed his sons, and he, as their natural parent, and acting as trustee for them, accepted the bonds for and in behalf of his minor sons. Dr. Berry at the time he purchased the bonds intended that they should be treated as advancements to his sons. $4150 in bonds were made payable to "Dr. Goebel D. Berry or Charles D. Berry," and $5650 in bonds were made payable to "Dr. Goebel D. Berry or Donald W. Berry." Mrs. Remel Horne Berry, as an individual and as guardian of the children by the second marriage, insists that the bonds should be classed as advancements and not as gifts, and that the same should be charged against the distributive share of the sons in the distribution of their father's estate.

The uncontradicted evidence showed: Dr. Berry purchased the bonds in June, 1944, for the college education of his two oldest sons, or to give them a start in business when they became of age. Dr. Berry in the spring before he passed away made statements relative to what he wanted done as to the bonds if he died. This was before and after he purchased the bonds, near the time he purchased them. He stated that he had a general plan as to how he was going to train his children regarding purchase of bonds. The plan was to give all the boys $5000 to further their college education. He started with the oldest boys first. He stated, prior to his death, that he was going to buy more bonds for David and Charles D. Berry because the latter didn't have as much as Donald W. Berry; and that, when he brought David's up to Charles D. and Donald W. Berry's, then he would start with little Goebel; and then he would start with Edmond's and George's. The estate was appraised at about $60,000.

The trial court rendered a judgment to the following effect: (1) The decree providing for monthly instalments of alimony, not being passed on any proven agreement between the parties providing for payments to be continued after the death of Dr. Berry, and the decree itself not so specifically providing, the liability for support ended with the death of Dr. Berry, there is no continuing liability for payment of such instalments out of his estate. (2) The United States War Savings Bonds, in which Charles D. Berry and Donald W. Berry were named as co-owners, were advancements and not gifts, and they should be required to account for the same in the distribution of their father's estate. The exception is to this judgment. Other facts will be stated in the opinion.

ATKINSON, Presiding justice. (After stating the foregoing facts.)

1. The first question for decision is whether the decree awarding Mrs. Margaret Berry $25 a month as permanent alimony, so long as she remained unmarried, survived the death of the husband as a charge upon his estate.

It is stated in 17 Am. Jur. 473, § 608: "According to the weight of authority, a decree, granted in connection with an absolute divorce, for the regular periodical payments of alimony to the wife for her maintenance and support is terminated upon the husband's death, in the absence, at least, of some stipulation in the order which would require payments after his death." In 27 C. J. S. 999, § 240 (b), it is said: "The right to receive alimony, and the corresponding duty to pay it, being personal, are generally considered as terminating on the death of either of the parties, where no statute to the contrary exists and the judgment or decree is silent on the subject." However, counsel for the plaintiffs in error, in arguing that the obligation to pay alimony is not a personal one, but a charge upon the husband's estate, insist that Code §§ 30-201 and 30-218 contain the exhaustive basic law of Georgia on the issue now before the court, and that the law of other States has no bearing thereon.

Code § 30-201 defines alimony as "an allowance out of the husband's estate, made for the support of the wife when living separate from him." Code § 30-209 declares: "The jury rendering the final verdict in a divorce suit may provide permanent alimony for the wife, either from the corpus of the estate or otherwise, according to the condition of the husband." Under a proper construction of these Code sections, alimony may consist of an allowance out of the husband's estate, or of a personal obligation to pay stated sums out of his future earnings. If alimony was restricted to an allowance out of a husband's estate, a man who had no property, but who was able-bodied and capable of earning a salary, could not be required to pay alimony. See, in this connection, Johnson v. Johnson, 131 Ga. 606 (2) ( 62 S.E. 1044), where a husband contended that he was not liable for permanent alimony because he had no property, and it was held: "A husband may be decreed to pay permanent alimony, although he may not have property either at the time of the filing of the libel for divorce or at the time of the trial, if it appears that he has an earning capacity."

The plaintiffs in error rely strongly on Code § 30-218, which declares: "After permanent alimony shall be granted, upon the death of the husband the wife shall not be entitled to any further interest in his estate in her right as wife, but such permanent provision shall be continued to her, or a portion of the estate equivalent thereto shall be set apart to her."

Wise v. Wise, 156 Ga. 459 (2) ( 119 S.E. 410), contains an exhaustive history of the various sections relating to alimony. While the question there determined was that, where specific property was awarded as alimony, the wife took an absolute title thereto without limitation as to its disposition or enjoyment; yet, in stating the history and effect of the various Code sections, on page 476 it is said that the provisions of § 1699 of the Code of 1863, now Code § 30-218, "refer to the grant of alimony where the marriage relation continues or has not been dissolved by a final verdict of divorce." We construe this to be a proper interpretation of the application of this section, and hold that it does not apply where a marriage contract has been dissolved by a final verdict for divorce.

This is not a case where an agreement entered into between the parties to pay a lump sum as permanent alimony was made the judgment of the court, or where the jury awarded specific property out of the husband's estate, as to which see Melton v. Hubbard, 135 Ga. 128 ( 68 S.E. 1101); Wise v. Wise, 156 Ga. 459 (supra); Brown v. Farkas, 195 Ga. 653 ( 25 S.E.2d 411); Roberson v. Roberson, 199 Ga. 627 (4) ( 34 S.E.2d 836); Green v. Starling, 203 Ga. 10 ( 45 S.E.2d 188).

Accordingly, the trial court, in passing upon all questions of law and fact without a jury, was authorized to find that the liability for the monthly payment of permanent alimony, so long as the wife remained unmarried, terminated upon the death of the husband.

2. The second question for decision is whether the United States Bonds purchased by Doctor Berry during his lifetime, and made payable to himself or two of his sons as co-owners, are chargeable against their respective shares in his estate as advancements.

A demurrer was filed by the guardian of Donald W. Berry and Charles D. Berry, on the ground that the petitioner alleges that the bonds now held by defendant as guardian were never delivered to the sons by their father during his lifetime, and that being taken as true, is an admission on the part of the petitioner that the bonds are not advancements, because in order to constitute an advancement there must be a delivery unconditionally by the parent to the child before his death with the intention of making an advancement, and it must be accepted by the child as an advancement during the parent's life.

The judgment, while overruling the demurrer, contained the statement, "but the question involved, as to whether or not the facts alleged were or were not advancements, is not decided until further proofs are had, at which time the court will consider further argument in connection with the allegations of the petition." In the circumstances set forth, the only adjudication that became the law of the case was that the demurrer was overruled subject to the right of the trial court, after further proofs and argument, to decide whether the facts alleged constituted advancements.

Counsel for the plaintiffs in error rely upon the provisions of Code § 113-1013, that "An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education."

"Where money or property is transferred by a parent to his child, and is accepted, the question of whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction, without regard to concurrence on the part of the child." Barron v. Barron, 181 Ga. 505 (2) ( 182 S.E. 851); Treadwell v. Everett, 185 Ga. 454 (1) ( 195 S.E. 762); Kaylor v. Kaylor, 199 Ga. 516 (4) ( 35 S.E.2d 1).

The case of Knight v. Wingate, 205 Ga. 133 ( 52 S.E.2d 604) did not involve the question of whether the bonds should be treated as advancements. However, counsel for the administrator in that case, relying upon the law of gifts contained in the Code, §§ 48-101, 48-102, and 48-103, which require delivery by the donor, acceptance by the donee, and surrender of dominion by the donor to the donee, insisted that, since no gift was completed by the decedent, the property remained his and was a part of his estate; also that the authorization of the wife as co-owner to collect, and the obligation of the United States to pay, did not purport to convey and could not have had the effect of conveying title to the proceeds in the wife contrary to the law of this State defining a gift. The father in the present case, just as the husband in the Knight case, purchased the bonds from the United States Government, paid the consideration therefor, and directed that they be conveyed to himself and his sons as co-owners. This was done under the law that conferred equal authority upon such co-owners to collect while in life, and upon the survivor alone to collect the same. The bonds are indisputably contracts in which the United States Government is made the promisor and the father and his sons are made the promisees. In the Knight case, just as in the case here, the obligor was bound by the terms of the contract to pay to the co-owner the full proceeds of the contract. As stated in the Knight case (p. 140): "True the bonds here in question were not conveyed outright to the wife, but certainly an interest therein, which is clearly defined by the terms of the bonds and law under which they are issued, is conveyed to the wife. . . In virtue of the contractual relationship created by the issuance of the bonds, the Government assumed a duty to each of the co-owners to pay the proceeds thereof to such co-owners according to the terms of that contract, one of the terms being that when Mr. Knight, a co-owner, died and Mrs. Knight, a co-owner, survived him, the full proceeds would be paid to Mrs. Knight." In reaching the above conclusion it was said: "The provisions of our Code, §§ 48-101, 48-102 and 48-103, are not inflexibly confined to requiring physical delivery by the donor, acceptance by the donee, and surrender of dominion to the donee." The plaintiffs in error here find no fault with the decision holding that title to the proceeds of the bonds vested in the surviving co-owner, over the insistence that there had been no acceptance by the co-owner, or delivery of the bonds, or surrender of dominion to the co-owner, but at the same time contend that, in so far as an advancement is concerned, there was no acceptance by the co-owner. To sustain this contention it would be necessary to overrule the decision in Knight v. Wingate, supra. See also Holliday v. Wingfield, 59 Ga. 206, where this court, in dealing with the question of acceptance, said: "These words do not mean that the child must formally accept the provision as an advancement; that the parent must say to the child, `Now, I give you this as an advancement,' and the child respond, `I accept it as such.' The meaning is, that the child must receive the provision, get the property or money in possession, and in that sense accept it, take it, keep it."

It follows that, under the uncontradicted evidence to the effect that Dr. Berry purchased the bonds in carrying out his intention to give each of his sons $5000 in bonds to be used in obtaining a college education, or to set them up in business, the trial court, in passing upon all questions of law and fact without a jury, was authorized to find that the United States War Savings Bonds, in which the father and two of his sons were named as co-owners, were intended as advancements, and that the sons should be required to account for the same in the distribution of their father's estate.

Judgment affirmed. All the Justices concur, except Candler, J., who dissents from the first division of the opinion and from the judgment of affirmance, Hawkins, J., who dissents from the rulings in both divisions of the opinion and from the judgment of affirmance, and Almand, J., who dissents from the second division of the opinion and from the judgment of affirmance. Atkinson, P. J., concurs specially.

ATKINSON, Presiding justice. (After stating the foregoing facts.)