                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-CA-00632-SCT
IN THE MATTER OF THE ESTATE OF DR. IVAN
LEE PEACOCKE, DECEASED: MARY THOMPSON
v.
NANCILLE YVONNE WATERS PEACOCKE

DATE OF JUDGMENT:                              05/12/95
TRIAL JUDGE:                                   HON. SEBE DALE JR.
COURT FROM WHICH APPEALED:                     LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        ORVIS A. SHIYOU JR.
ATTORNEY FOR APPELLEE:                         WILLIAM L. DUCKER
NATURE OF THE CASE:                            CIVIL - WILLS, TRUSTS AND ESTATES
DISPOSITION:                                   REVERSED AND RENDERED - 6/5/97
MOTION FOR REHEARING FILED:                    7/17/97
MANDATE ISSUED:                                10/9/97




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


     SMITH, JUSTICE, FOR THE COURT:




¶1. Appellant prays for relief from the judgment of the Lamar County Chancery Court wherein the
chancellor allowed a claim of the appellee against the estate of the appellee's ex-husband for future
periodic alimony. We reverse and render this decision since an examination of the relevant case law
of both Mississippi and Georgia, where the divorce decree was rendered, clearly shows that the
general rule is that such a claim for future periodic alimony terminates upon the death of the payor or
upon the death or remarriage of the payee. Further, the primary Georgia case upon which the
appellee relies was overruled and, seeing no reason to apply law prospectively, we follow the general
rule of retroactivity of application of court decisions.

                                               FACTS

¶2. In 1972, Dr. Ivan Peacocke and Nancille Peacocke were divorced in DeKalb County, Georgia,
where they resided at that time. A settlement decree was entered which was incorporated into the
divorce decree stating:

     In full and complete settlement of all claims by Wife against Husband for alimony, past, present,
     or future, Husband agrees to pay and Wife agrees to accept the following sums: . . .One
     Thousand ($1, 000) Dollars per month as alimony for the support and maintenance of the Wife.
     . .to be paid on the 18 thday of each and every month thereafter until said Wife shall remarry or
     die, whichever shall first occur.

¶3. On May 2, 1993, Dr. Peacocke died testate in Lamar County. On August 12, 1993, Nancille
probated a claim against Dr. Peacocke's estate for the sum of $137,907.76 based upon future alimony
payments and her projected life span. On October 10, 1994, the executor of Dr. Peacocke's estate
filed a petition to determine the validity of the probated claim, asking the Chancery Court of Lamar
County to determine the validity of Nancille's claim. Mary Thompson, a named beneficiary under the
will, filed her opposition to the claim filed by Nancille. On May 17, 1995, the chancellor entered an
order allowing the probated claim of Nancille Peacocke, but reserving a ruling as to the amount.
Aggrieved, Mary Thompson appeals.

                                       DISCUSSION OF LAW

¶4. Thompson cites one issue for appeal.

WHETHER THE CHANCELLOR ERRED IN ALLOWING THE CLAIM OF AN EX-
SPOUSE FOR FUTURE ALIMONY AGAINST THE ESTATE OF A DECEDENT.

¶5. Preliminarily, Nancille suggests that Mary Thompson has no standing to appeal the ruling of the
chancellor because she did not validly contest the claim until after the chancellor issued his ruling.
However, an examination of the record in this case indicates that Mary and other legatees under the
will entered a Waiver of Process and Entry of Appearance to Petition to Determine Validity of
Probated Claim on January 24, 1995, almost four months before the chancellor issued his ruling on
May 17, 1995. Therefore, Mary Thompson does have standing to bring this appeal.

¶6. Regardless of whether Mississippi or Georgia law is applied to this action, in the end, the result is
the same. There is no substantive difference in Georgia law and Mississippi law on the issue of
whether an ex-spouse may assert a claim of alimony against a decedent's estate absent an express
provision that alimony shall be paid by the payor's estate after the death of the payor.

¶7. In Georgia, there were two lines of cases on the point. Berry v. Berry, 208 Ga. 285, 289, 66
S.E.2d 336, 339 (1951) first enunciated the general rule that a claim to pay periodic alimony is not
enforceable against the estate of the payor, but terminates upon the death of the payor or the death or
remarriage of the payee. This general rule is the same in Mississippi: periodic alimony cannot be
made an obligation of the decedent's estate. It terminates upon the death of the payor or the
remarriage of the payee. Holleman v. Holleman, 527 So. 2d 90, 91 (Miss. 1988) citing East v. East,
493 So. 2d 927, 931 (Miss. 1986).

¶8. Nancille relies upon Ramsay v. Sims, 209 Ga. 228 (1952), decided one year after Berry, which
held that a divorce decree entered pursuant to a settlement agreement is akin to a contract. Thus, the
parties are to be held to the terms of the contract. If the terms state that alimony is to continue until
the death of the remarriage of the wife, then the husband's estate is held to those terms even after the
husband's death.
¶9. Nancille admits that Ramsey v. Sims was overruled by Dolvin v. Dolvin, 248 Ga. 439, 284
S.E.2d 254 (1981), which specifically recognized that two lines of authority existed as to this
question of law and held that the correct line of authority was that of Berry. 248 Ga. At 441, 284
S.E.2d at 255-56. However, Nancy argues that since Ramsay v. Sims was the law at the time that
the divorce and settlement decrees were rendered, then the Court is bound to rely upon them. There
are two flaws in this argument.

¶10. First, it is quite clear from a reading of Dolvin that the Georgia Supreme Court never intended
to read settlement agreements as contracts binding upon the estates of decedents without express
agreement as such by the parties. In Dolvin, that Court stated that "We cannot agree with the
Ramsay court that the boilerplate language of that agreement evidenced a manifest intention of the
parties to reverse the normal rule that the death of the husband terminates his obligation to pay
alimony. . . so that an agreement which is silent as to the husband's death creates by its boilerplate
regarding the wife an obligation on his estate to continue to pay alimony." Id. In addition, to allow
such an outcome would possibly allow the payee to collect the alimony in one lump sum from the
estate, as Nancille seeks to do here, and then proceed to remarry.

¶11. Second, Nancille would have the Court apply a rule that future actions in reference to divorce
decrees are to be applied only prospectively. Such a ruling would be in derogation of the stance of
this Court on prospectivity. In Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985), this Court held that "it
is a general rule that judicially enunciated rules of law apply retroactively. Legislation applies
prospectively only, and we are not thought to be in the business of legislating. Rather, our function is
to decide cases justly in accordance with sound legal principles which of necessity must be
formulated, articulated, and applied consistently with the facts of the case. Id at 876. The rule is also
the same in Georgia. The general rule is that court decisions apply retroactively. Abu-Khdeir v. T.J.
Maxx, Inc., 191 Ga.App. 523,524, 382 S.E. 2d 216, 217 (1989); Federated Mutual Ins. Co. v.
Dekalb County, 176 Ga.App. 70, 72, 335 S.E. 2d 873, 875 (1985). Accordingly, the ruling of this
Court applies retrospectively, and the Ramsay decision is given no application to the case at bar.

                                           CONCLUSION

¶12. Under Georgia law or Mississippi law, the outcome of this case does not differ. We hold that
Nancille Peacocke cannot maintain an action for periodic alimony against the estate of her deceased
ex-husband. As a result, this case is reversed and rendered. The Dolvin decision applies
retrospectively according to the dictates of Hall v. Hilbun as well as the dictates of Abu-Khdeir v.
T.J. Maxx, Inc. and Federated Mutual Ins. Co. v. Dekalb County.

¶13. REVERSED AND RENDERED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS
AND MILLS, JJ., CONCUR.
