Howe's Estate, In re

• Decision Date: 13 January 1959
• Citation: 183 N.Y.S.2d 156,15 Misc.2d 1044
• Parties: In re ESTATE of Hubert S. HOWE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 156

183 N.Y.S.2d 156

15 Misc.2d 1044

In re ESTATE of Hubert S. HOWE.

Surrogate's Court, New York County.

Jan. 13, 1959.

Naylor, Foster, Dean & Aronson, Gerald J. Dean and George Foster, Jr., New York City, for Ernest J. Howe, executor. H. A. & C. E. Heydt, New York City (Norman C. Nicholson and J. David Silvers, New York City, of counsel), for Estelle C. Howe.

JOSEPH A. COX, Surrogate.

The testator and the objectant herein were married in 1932 and entered into a separation agreement in 1953 which contained the preliminary recitals common to this type of agreement, provided that the parties could continue to live apart, recognized certain property interests of each party and committed the husband to make monthly payments to the wife 'during her lifetime, or until her remarriage'. The covenant to make such payments reads as follows:

'5. The Husband covenants and agrees to pay to the Wife, during her lifetime, or until her remarriage, for her support and maintenance, the sum of $350.00 per month, payable in advance on the 12th day of each and every month.

'In the event, however, that a divorce is obtained by either party against the other, the Husband shall pay to the Wife, during her lifetime, or, if she remarries, until her remarriage, for her support and maintenance, the sum of $425.00 per month payable on the 12th day of each and every month, in advance, during the lifetime of the Wife or until she remarries.'

The agreement also included a waiver and a release by each party of any interest in the property or estate of the other and of any right or claim to be the personal representative of the other's estate. The contract also contained the following clauses:

'Should either party obtain a decree of absolute divorce against the other in any court of competent jurisdiction, the provisions of this Agreement shall be incorporated in such decree. Nevertheless, this Agreement shall not be deemed to be merged in any such judgment of divorce, and this Agreement shall survive such judgment or decree and shall remain in full force and effect notwithstanding such judgment or decree.'

'* * * No oral statement or prior written matter extrinsic to this Agreement concerning the rights, duties or obligations of either party hereto to the other shall have any force or effect. The parties are not relying upon any representations other than those expressly set forth herein.'

Immediately after the execution of the agreement the wife, the objectant herein, took steps to procure a Mexican divorce and thereafter a decree was made in an action in which the husband appeared. That decree approved the separation agreement and decreed the following:

'As it is established in Paragraph 5 of the agreement of separation entered into between the parties, the defendant shall pay to plaintiff a pension of $425.00 four hundred and twenty-five dollars per month in United States currency for her maintenance and support.'

The testator's liability for monthly payments during his lifetime is not questioned but the executor has rejected the claim of the former wife for payments which she asserts have accrued since the testator's death. The question presented by the objections to the executor's account is whether or not the estate is liable to the objectant for monthly payments for any period subsequent to the testator's death.

Were the objectant relying solely upon a decree of divorce, either because of the absence of a separate contract or because an existent contract had been superseded by the decree, her divorced husband's obligation to pay alimony would not have extended to any period subsequent to his death for the reason that such obligation would be regarded only as the equivalent of his marital duty to support his wife so long as he lived. Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236, 2 L.R.A.,N.S., 232; Barnes v. Klug, 129 App.Div. 192, 113 N.Y.S. 325; Johns v. Johns, 44 App.Div. 533, 60 N.Y.S. 865, affirmed 166 N.Y. 613, 59 N.E. 1124; Cooke v. Cooke, 2 A.D.2d 128, 154 N.Y.S.2d 757. The objectant however premises her claim upon the agreement which was not merged in the divorce decree and which, by its terms, operates independently of that decree. Agreements extending a husband's obligation to support his wife beyond his death are enforceable. Wilson v. Hinman, supra; Barnes v. Klug, supra; Cooke v. Cooke, supra; Murray v. Murray, 278 App.Div. 183, 104 N.Y.S.2d 44; Matter of Herb's Estate, 163 Misc. 441, 296 N.Y.S. 491; Matter of Grimley's Estate, 200 Misc. 901, 107 N.Y.S.2d 129; Matter of Embiricos's Estate, 184 Misc. 453, 52 N.Y.S.2d 425, and, consequently, the sole issue herein is one of interpreting the contract. That paper is not at all ambiguous and in its fifth article provides in three places that the obligation of the husband would continue during the lifetime of the wife or until her remarriage. The thirteenth article states that no oral...