Wosnitzer's Estate, In re

• Decision Date: 17 April 1975
• Citation: 47 A.D.2d 402,366 N.Y.S.2d 653
• Parties: In re ESTATE of Mortimer WOSNITZER, Deceased. In the Matter of the Application for a Compulsory Accounting in the Estate of Mortimer Wosnitzer a/k/a Mortimer Warren. Diana WARREN, Executrix, Respondent-Respondent, and Victoria WOSNITZER, Petitioner-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 653

366 N.Y.S.2d 653

47 A.D.2d 402

In re ESTATE of Mortimer WOSNITZER, Deceased In the Matter of the Application for a Compulsory Accounting in the Estate of Mortimer Wosnitzer a/k/a Mortimer Warren Diana WARREN, Executrix, Respondent-Respondent and Victoria WOSNITZER, Petitioner-Appellant.

Supreme Court, Appellate Division, First Department.

April 17, 1975.

Michael W. Holland, Jamaica, of counsel (George Washington Herz, Jamaica, with him on the brief, Herz & Ryder, Jamaica), for petitioner-appellant.

Stanley M. Estrow, New York City, for respondent-respondent.

Before MARKEWICH, J.P., and KUPFERMAN, LUPIANO, LANE and LYNCH, JJ.

LUPIANO, Justice.

The order of the Surrogate's Court, Bronx County, entered September 3, 1974, which denied petitioner's application to compel an accounting, should be reversed on the law and the matter remanded for a hearing as to the issue of whether, under the separation agreement between petitioner and her former husband, after the latter's demise, petitioner has a cause of action against his estate to recover the prescribed weekly payments for her support for the period beginning at his death and continuing until her death or remarriage. Petitioner and Mortimer Wosnitzer, now deceased, were married on March 10, 1940. On October 7, 1965, they executed a separation agreement. At that time, the children born of this union, to wit, Sandra and Judy, were respectively 19 and 14 years of age. The agreement, apparently executed in the context of an action pending between the parties in the Supreme Court, Queens County, provides in pertinent part:

'FIFTH: The HUSBAND agrees to pay the WIFE for her support, until her death, or remarriage, and for the maintenance of said CHILDREN residing with the WIFE until they attain twenty-one (21) years of age, or until they marry or are self-supporting, or dies, the sum of $100.00 per week apportioned as follows: $75.00 for the WIFE and $12.50 for each child, upon the death or remarriage of the WIFE, and HUSBAND shall increase the weekly payment to each child who shall be under the age of twenty-one years so that they shall be paid a total sum of $25.00 weekly for each child, until they attain 21 years of age, or until they marry or are self-supporting, or dies . . .. EIGHTH. The obligations of the HUSBAND to make . . . the payments hereinabove provided for the support, maintenance and education of the CHILDREN shall survive the HUSBAND'S death and shall be a charge against his estate and shall be paid as part of HUSBAND'S debts and obligations . . .. EIGHTEENTH: The HUSBAND agrees to maintain a certain life insurance policy upon his life, made by the Continental American Insurance Company, in the face amount of Ten Thousand ($10,000.00) Dollars, and cause same to be made irrevocably payable to the WIFE; to turn same over to the WIFE, to pay and continue to pay the premiums thereon and keep such policy in full force and effect, refrain from pledging or otherwise hypothecating or disposing of the cash surrender value, or the proceeds or benefits thereof; in the event the HUSBAND does not pay the premiums thereon, the WIFE may pay for same, and the amount so paid shall become a part of the maintenance and support heretofore mentioned; the WIFE may proceed to enforce the collection of the said sum in the same manner as if same were unpaid maintenance and support herein. Upon remarriage of the WIFE, the WIFE shall assign her rights therein to the CHILDREN, share and share alike.'

Petitioner obtained a Mexican divorce decree on October 26, 1965 which incorporated, but did not merge the separation agreement. Mortimer Wosnitzer died on October 17, 1972, leaving a will which he had executed on July 13, 1970.

In denying the application by petitioner to enforce her claim against the estate for support payments, the Surrogate observed that '(t)he agreement at issue is devoid of any specific provision enunciating a contractual obligation by the husband obligating his estate to continue alimony payments after his death' and, although acknowledging the thrust of paragraph 'FIFTH' of the agreement, declared with specific reference to paragraphs 'EIGHTH' and 'EIGHTEENTH' that 'the remaining provisions clearly indicate that the issue of payments to the wife of alimony from her former husband's estate was considered and it was the intent of the parties to the agreement that there be no such payments'.

Initially, it is noted that '(t)he first and best rule of construction of every contract, and the only rule we need here, is that, when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein Hartigan v. Casualty Co of America, 227 N.Y. 175, 179, 124 N.E. 789, 790; Brainard v. New York Cent. R. Co., 242 N.Y. 125, 133, 151 N.E. 152, 154, 45 A.L.R. 751. The applicability, to separation agreements, of that fundamental rule, has been affirmed by this court on several occasions Galusha v. Galusha, 116 N.Y. 635, 646, 22 N.E. 1114, 1117, 6 L.R.A. 487; Stoddard v. Stoddard, 227 N.Y. 13, 124 N.E. 91; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Schmelzel v. Schmelzel, 287 N.Y. 21, 38 N.E.2d 114' (Nichols v. Nichols, 306 N.Y. 490, 496, 119 N.E.2d 351, 353 (1954)). The issue thus posed is whether the terms of the separation agreement are clear and unambiguous. In Matter of Howe, 15 Misc.2d 1044, 183 N.Y.S.2d 156, affd., 8 A.D.2d 720, 187 N.Y.S.2d 332 (1st Dept., 1959), the Surrogate considered a separation agreement which committed the husband to make monthy support payments to the wife 'during her lifetime, or until her remarriage'. And here, the wife in Howe immediately after the execution of the agreement procured a Mexican divorce decree in an action in which the husband appeared, which decree incorporated, but did not merge the agreement. As here, the agreement was observed to be 'drawn with care by attorneys of skill'; it was aptly noted that '(w)here a separation agreement provides, as here, that the wife release any interest in her husband's estate either as an intestate distributee or by reason of a right of election it is not all unreasonable that, in consideration for such release, she should require some security until a remarriage. A wife living apart under a separation agreement may, in the absence of a release of her rights, assert a claim to a portion of her husband's estate and when she releases her rights in consideration for monthly payments and the separation agreement also provides that a divorce may be obtained by either party, the procurement of a divorce does not invalidate the consideration for which the husband agreed to make the payments. While it would be possible for an agreement to distinguish between payments payable during the period of separation and payable after a divorce, this agreement draws no such line' (Matter of Howe, Supra, 15 Misc.2d at pp. 1046--1047, 183 N.Y.S.2d at p. 158). Separation agreements whereby the husband stipulates to make support payments to the wife during Her life or until she remarries have been held not to terminate upon the death of the husband and to be binding upon his estate (Matter of Davis, 32 A.D.2d 667, 300 N.Y.S.2d 783 (2nd Dept., 1969); Murray v. Murray, 278 App.Div. 183, 189, 104 N.Y.S.2d 44, 48 (1st Dept., 1951); Barnes v. Klug, 129 App.Div. 192, 113 N.Y.S. 325 (1st Dept., 1908); Matter of Grimley, 200 Misc. 901, 107 N.Y.S.2d 129; Matter of Herb, 163 Misc. 441, 296 N.Y.S. 491; see Wilson v. Hinman, 182 N.Y. 408, 414, 75 N.E. 236, 238 (1905)). Patently, if the separation agreement herein is read without taking into consideration the provisions of paragraph 'EIGHTH', we must conclude in view of the aforesaid that petitioner would be entitled to support payments accruing after the husband's demise (See cases collected in annotation in 75 A.L.R.2d 1085--1103). This conclusion is reinforced by the rule that '. . . it is a presumption of law, in the absence of express words, that the parties to a contract intend to bind, not only themselves, but their personal representatives' (Kernochan v. Murray, 111 N.Y. 306, 308, 18 N.E. 868, 869 (1888)).

Paragraph 'EIGHTH' specifically provides that the maintenance, education and support obligations undertaken by the husband as to the infant issue of the marriage, shall survive his death and be a charge on the estate. It is well recognized that minor children are not considered parties to a separation agreement executed by their parents and the parental obligation to support such children is unaffected by the agreement, although it will not be disregarded in serving as a...