IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CA-01658-SCT

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF J. E. SHEPPARD, SR.,

DECEASED: MARGARET SHEPPARD

v.

BOBBY PACE, EXECUTOR OF THE LAST WILL AND TESTAMENT OF J. E.

SHEPPARD, SR., DECEASED, AND PATRICIA HALL SHEPPARD

DATE OF JUDGMENT: 10/06/1998

TRIAL JUDGE: HON. DENISE OWENS

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: GENE A. WILKERSON

JAMES A. PEDEN, JR.

ATTORNEYS FOR APPELLEES: ROBERT E. WILLIFORD

MARCIE MARVEL FYKE

PATRICK F. McALLISTER

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES

DISPOSITION: REVERSED AND REMANDED - 1/13/2000

MOTION FOR REHEARING FILED: 01/27/2000; denied 3/16/2000

MANDATE ISSUED: 3/23/2000

BEFORE PRATHER, C.J., BANKS AND McRAE, JJ.

BANKS, JUSTICE, FOR THE COURT:

¶1. In this probate dispute a divorce settlement provided that the monthly alimony payments terminate upon

the death or remarriage of the wife. There was no mention as to the husband's death. The agreement was

made binding upon the parties, their administrators, executors and assigns. We conclude that such an

agreement only terminates, as stated by its terms, upon the death or remarriage of the wife. Accordingly, we

reverse the chancery court and remand to that court for further proceedings.

I.

¶2. This dispute arises out of provisions of a Property Settlement and Separation Agreement ("Agreement")

incorporated into a Final Judgment of Divorce. The parties to the Agreement were the husband, James

Edward "Buddy" Sheppard a/k/a J. E. Sheppard, Sr. ("Buddy") and the wife, Appellant Margaret

Sheppard ("Margaret"). Buddy is now deceased.

¶3. The relevant parts of the Agreement provided that (1) Buddy would pay alimony in monthly amounts to
Margaret until the death or remarriage of Margaret, and (2) this Agreement "shall be binding upon the

parties hereto, their administrators, executors, and assigns" in Paragraphs 4 and 13 of the Agreement,

respectively.

¶4. Margaret and Buddy were lawfully married in Atlanta, Georgia, on June 17, 1959. They were married

for more than twenty-five (25) years. They had two children, Michael Clay Sheppard and Valerie Michele

Sheppard. Margaret and Buddy made their home in Jackson, Mississippi. Buddy became a very successful

and wealthy businessman. Margaret stayed home and raised the children. Margaret and Buddy were

divorced on November 21, 1984, in Hinds County, Mississippi. The divorce was granted on the grounds

of irreconcilable differences. The Agreement was incorporated into the Final Judgment of Divorce. All

parties followed the provisions of the Agreement until Buddy's death. Margaret never remarried. Buddy

married Appellee Patricia Hall Sheppard ("Patricia") on August 18, 1995. On September 5, 1997, Buddy

executed a Last Will and Testament, appointing Appellee Bobby Pace ("Pace") as Executor. Buddy made

Patricia his primary beneficiary. Upon Buddy's death, Pace petitioned the Chancery Court of Hinds County

to admit Buddy's Last Will and Testament to probate. The Chancery Court entered an Order admitting the

will to probate On December 22, 1997.

¶5. On May 15, 1998, Margaret filed a claim in the probate proceedings. She stated that $15,000 plus

interest was owed to her per the Agreement at the time of filing, and $3,000 would be owed to her by the

estate on the first of each month. So that Buddy's estate would not have to remain open for many years to

make the alimony payments, Margaret demanded $412,853.95 as the current value of the future payments

based upon her life expectancy of 21.25 years. Margaret argued that the alimony payments were

terminated only by her death or remarriage.

¶6. Pace filed a petition to deny the probate and payment of Margaret's claim. Patricia joined in Pace's

petition. The parties submitted briefs and presented oral argument on the issue. The chancery court,

concluding that the alimony payments best fit under the label "periodic," applied the statutory conditions for

cessation of periodic alimony and denied probate of Margaret's claim. Aggrieved, Margaret filed this

appeal.

II.

¶7. This Court has stated that the chancellor's decision will not be reversed unless the decision is manifestly

wrong. In re Estate of McClerkin, 651 So. 2d 1052, 1055 (Miss. 1995) (citing In re Estate of Mason,

616 So. 2d 322, 331 (Miss. 1993)). "The Court will not hesitate to reverse if it finds the chancellor's

decision is 'manifestly wrong, or that the court applied an erroneous legal standard . . . '." McClerkin, 651

So. 2d at 1055 (quoting Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).

¶8. This Court has expressly recognized that a husband and wife may agree that a husband's obligation to

make periodic payments to his wife will survive his death and bind his estate. Smith v. Smith, 349 So. 2d

529, 531 (Miss. 1977). Further "it is generally recognized that the parties may, by contract, provide for

periodic payments during the life of the wife after her husband's death, so as to make such payments a

continuing charge on his estate." In re Estate of Kennington, 204 So. 2d 444, 449 (Miss. 1967)

(citations omitted).

¶9. We recently addressed this issue in In re Estate of Peacocke, 694 So. 2d 1252 (Miss. 1997). In

Peacocke, we held that absent an express provision that alimony shall be paid by the payor's estate after
the death of the payor the obligation cannot be made an obligation of the estate. Id. at 1254.

¶10. The relevant portions of the agreement before us here are, Paragraphs 4 and 13 which read as

follows:

4.

The husband further agrees to pay to the wife, as a form of permanent alimony and as his contribution

toward the support and maintenance of the wife who's unemployed, the sum of $4,000.00 per month

for the next five (5) years, beginning December 1, 1984, and automatically reducing to the sum of $3,

000.00 per month after sixty (60) months, and continuing at the rate of $3,000.00 per month from

and after December 1, 1989 until the death or remarriage of the wife or until otherwise reduced

by the Court . . .

13.

This Agreement shall be binding upon the parties hereto, their administrators, executors

and assigns.

(emphasis added).

¶11. The chancery court failed to consider expressly whether the Agreement was sufficient to bind Buddy's

estate, but, rather simply held that the Agreement created periodic alimony. The court reasoned that

because the provision was subject to modification by the court it was not lump sum alimony and, therefore,

could only be periodic alimony. Thus, by our law governing periodic alimony, it followed, in the view of the

chancellor, that it was terminated upon the death of Buddy.

¶12. The chancery court, appears then to have relied upon attaching a label to paragraph 4 instead of its

substance. This is error. Bowe v. Bowe, 557 So. 2d 793, 794 (Miss. 1990). In Bowe we repeated the oft

heard admonition to "look to the substance of what has been provided, and not the label." Bowe at 795.

¶13. Turning to the substance of the provisions of the agreement, we note that it has long been our law that

"[w]here only one exception is mentioned in a contract ... exceptions not mentioned cannot be engrafted

upon it."(1) Gilchrist Tractor Co. v. Stribling, 192 So. 2d 409, 415 (Miss. 1966). See also Bailey v.

Southern Bell Tel. & Tel. Co., 206 Miss. 723, 40 So. 2d 606 (1949); McCoy v. McRae, 204 Miss.

309, 37 So. 2d 353 (1948); United States Fidelity & Guar. Co. v. Maryland Cas. Co., 191 Miss.

103, 199 So. 278 (1940); Divelbiss v. Burns, 161 Miss. 724, 138 So. 346 (1931). In paragraph 4 the

periodic alimony was expressly terminable upon the death or remarriage of Margaret. There is no mention

of Buddy's death. Following this familiar rule of construction, we cannot assume that this also meant it

terminated upon the death of Buddy. We must instead assume the opposite, that is, the failure to mention

Buddy's death as an event of termination expressed an intent that it not be such an event.

¶14. Paragraph 13 fulfills the additional requirement in our law that in order that periodic alimony survive the

death of the payor spouse an agreement must expressly binds the estate. Buddy's estate was bound by the

Agreement. It follows that the alimony provided in Paragraph 4 survives Buddy's death.

III.
¶15. Pace and Patricia assert that Paragraph 6 of the agreement shows that the parties contemplated what

was to happen upon Buddy's death. Paragraph 6 stated that Buddy would maintain life insurance in the

amount of $160,000 insuring his life with Margaret as the primary beneficiary. Pace and Patricia contend

that this provision speaks volumes as to the parties' intent. Patricia asserts that there would be no logical

reason to provide such life insurance if they intended the alimony to survive Buddy's death. Patricia asserts

that surely they contemplated that the permanent alimony would cease upon Buddy's death, and the life

insurance would be the cushion for the loss of the alimony payments. We disagree. We adopt the rationale

of our sister states Connecticut, Massachusetts, and Pennsylvania.

¶16. In Connecticut, Massachusetts, and Pennsylvania a life insurance policy does not terminate alimony

expressly made binding upon the obligor's estate. McDonnell v. McDonnell, 348 A.2d 575 (Conn.

1974); Taylor v. Gowetz, 158 N.E.2d 677 (Mass. 1959); In re Estate of Ervin 243 A.2d 420 (Pa.

1968).

¶17. In McDonnell, the Connecticut Supreme Court held the alimony was binding upon the husband's

estate even though he was required to keep an life insurance policy. In that agreement, the alimony was

made binding with the language "for himself, his heirs, executors, and representatives." McDonnell at 577.

¶18. In Taylor, the Massachusetts Supreme Judicial Court interpreted an agreement with the language that

the alimony had to be paid "if and so long as the wife is living and remains unmarried." Taylor at 296. There

was no limitation upon the husband's life, and he was required to maintain a life insurance for the benefit of

the wife. Taylor at 295-96. The estate argued, as Pace does here, that the life insurance policy was

intended to take the place alimony payment upon the husband's death. Taylor at 300. The Massachusetts

Supreme Judicial Court rejected this argument and ruled the estate had to continue to make the monthly

alimony payments to the wife. Taylor at 300.

¶19. In In re Estate of Ervin, the Pennsylvania Supreme Court interpreted an agreement which contained

the language that the alimony payment will continue to the wife "until her death or prior remarriage." In re

Estate of Ervin at 433. The agreement also bound the parties, their heirs, executors, and assigns. In re

Estate of Ervin at 436. Additionally, the agreement required the husband to maintain a life insurance

policy for the wife's benefit. In re Estate of Ervin at 436. The Pennsylvania Supreme Court stated, "In our

view, there is no reason why the life insurance cannot be in addition to the [alimony] payments." In re

Estate of Ervin, at 423.

¶20. Here there is no language in the Agreement which ties the insurance policy to the alimony payments.

We conclude that the policy should not be deemed to be provided in lieu of the alimony payments because

there is no proof of any intent to do so.

IV.

¶21. For the foregoing reasons, the alimony agreement is binding upon the Buddy's estate. The chancery

court's judgment is reversed. This case is remanded for final distribution of Buddy's estate in accordance

with this opinion. We decline to order a lump sum payment as requested by Margaret, however. We leave

consideration of the manner in which the estate shall fulfill its alimony obligation to the chancellor.

¶22. REVERSED AND REMANDED.
PRATHER, C.J., PITTMAN, P.J., McRAE, SMITH AND COBB, JJ.,

CONCUR. SULLIVAN, P.J., DISSENTS WITH SEPARATE WRITTEN

OPINION JOINED BY MILLS AND WALLER, JJ.

SULLIVAN, PRESIDING JUSTICE, DISSENTING:

¶23. The chancellor's decision to terminate periodic alimony at the death of the paying spouse, Buddy

Sheppard, was entirely consistent with the property settlement agreement reached between Sheppard and

his wife at the time of their divorce. The decision of the chancellor was also entirely consistent with

Mississippi precedent. At issue is whether the estate of Buddy Sheppard should continue making periodic

alimony payments to Sheppard's former wife after his death. The relevant portion of the property settlement

agreement states:

4.

The husband further agrees to pay the wife, as a form of permanent alimony and as his contribution

toward the support and maintenance of the wife who's unemployed, the sum of $4,000.00 per month

for the next five (5) years, beginning December 1, 1984, and automatically reducing the sum of $3,

000.00 per month after sixty (60) months, and continuing at the rate of $3,000.00 per month from

and after December 1, 1989 until the death or remarriage of the wife or until otherwise

reduced by the Court; provided further, however, that in the event the wife remarries within two (2)

years from the date of this Agreement, the husband agrees to pay her the sum of $50,000.00 and if

the wife does not marry within two (2) years but does remarry within five (5) years from the date of

this Agreement, the lesser sum of $25,000.00, with said payment, in either event to be made in a

method, and on a basis to give him maximum income tax advantage. The wife hereby releases any

other alimony rights not specifically provided herein.

(emphasis added).

¶24. The chancellor held that under this provision the payments would terminate upon the death of the

paying spouse. The position of the chancellor is supported by the law of this state. First, it is well settled that

periodic alimony payments terminate upon the remarriage of the receiving spouse or upon the death of the

paying spouse. In re Estate of Peacocke, 694 So.2d 1252, 1254 (Miss. 1997); East v. East, 493 So.2d

927, 931 (Miss. 1986). Second, the only possible means by which periodic alimony payments can continue

beyond the death of the paying spouse, as the majority points out in its opinion, is if there is an express

provision that alimony shall be paid by the estate of the paying spouse after the death of the paying

spouse, otherwise the alimony payments cannot be made an obligation of the estate. Peacocke, at 1254. In

the present case it is obvious that no such express provision exists. The only express provision relates to the

death or remarriage of the receiving spouse. There is no express provision that alimony payments shall be

made from the estate of the paying spouse after the death of the paying spouse. Absent such an express

provision, the claims on the estate made by the receiving spouse must fail. Because there was no manifest

error or application of an erroneous legal standard, I would affirm the judgment of the chancery court

dismissing the probated claim of Margaret Sheppard. For these reasons, I respectfully dissent.

MILLS AND WALLER, JJ., JOIN THIS OPINION.
1. This law is commonly referred to by the Latin phrase expressio unius est exclusio alterius.