#### Ida Van Aken Barnes, Respondent, *v.*Auguste F. Klug and William F. Hagarty, as Executors, etc., of Justin L. Barnes, Deceased, Appellants, Impleaded with Zadel Barnes Gustafson, as Trustee of said Ida Van Aken Barnes, and Others, Defendants.

First Department,

December 11, 1908.

Husband and wife — contract — separation agreement through intervention of trustee— party—when wife may sue in her own name — when separation agreement not extinguished by death of husband — election to take provision in lieu of dower — equity — suit to set aside funds.

Although a husband when actually separated from his wife, made an agreement through a trustee to pay her a monthly sum for support during her life, the wife is the real party in interest and may sue thereon in her own name, joining the trustee as defendant, especially where he contends that the agreement was terminated by the death of the husband.

Although a right to alimony abates at the death- of the husband, his voluntary agreement to support his wife during her lifetime does not abate, even though it is not expressly stated to be binding on his legal representatives.

It is a presumption of law in the absence of express words that parties to a contract intend to bind not only themselves but their personal representatives.

Even though a provision in such separation agreement whereby the wife relinquished her dower was ineffectual for the purpose, it is not inequitable to permit her to enforce the contract, for she will be estopped from claiming dower in addition.

The wife after the death of the husband may sue in equity for a decree setting apart a fund sufficient to meet the monthly payments, for the surrogate cannot make such decree and legal actions for each installment would not prevent a distribution of the estate.

Appeal by the defendants, Auguste F. Klug and another, as executors, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the amended complaint.

*William H. Stryker,*for the appellants.

*Joseph N.*Tuttle, for the respondent.

*193Houghton, J.:

The amended complaint alleges that appellants’ testator, Justin L. Barnes, and plaintiff were formerly husband and wife, and that such differences arose between them that they separated in April, 1892, and that shortly thereafter while still living apart an agreement of separation was entered into between them by which it was provided that they should live separate and apart, and that in consideration of the mutual covenants, one of which was the release by plaintiff of all claim of dower and distributive share in his estate, the husband agreed to pay to a trustee named in such agreement, for plaintiff’s support and the maintenance and education of his and her two children, the sum of fifteen dollars per week, in advance, for the term of the natural life of plaintiff; and with a further provision in the articles of separation that if the means and business of the husband should warrant, the weekly payments would be increased proportionately ; that said agreement was observed and the weekly payments made from May, 1892, to February, 1902, when, for a valuable consideration, to wit, the withdrawal of an action, Justin L. Barnes agreed to pay to the plaintiff herself on the fifteenth day of Juue following and on the fifteenth day of each month thereafter the sum of one hundred dollars in place of the previously stipulated weekly payments of fifteen dollars; that such modified agreement was carried out by said Justin. L. Barnes and the payments made as stipulated from the 15th day of June, 1902, down to the 15th day of February, 1907, such payments being made directly to the plaintiff without the intervention of the trustee named in the original agreement; that Justin L. Barnes died on the 13th day of April, 1907, leaving a last will and testament duly admitted to probate, of which these appellants are the 'qualified executors, and that such will contains no provision for the support of this plaintiff during the remainder of her life, or for the carrying out of such separation agreement as to monthly payments; but that the property and estate of the deceased in the hands of these appellants is sufficient in amount to warrant the payment to plaintiff during the remainder of her life of the sum of one hundred dollars per month for her support and maintenance; that the executors claim that all legal liability under the separation agreement as modi*194tied ceased on the death of their testator; that plaintiff has no means in the Surrogate’s Court of adjusting her claim or of preventing in that court distribution of the estate of the testator as provided by his will, or of compelling the executors to retain in their hands a fund sufficient to meet the monthly payments as long as plaintiff shall live, and judgment is demanded that it be ad judged that plaintiff is entitled to receive out of the estate of said testator the sum of one hundred dollars per month as long as she may live, and that she be awarded in money the accumulated payments up to the time of trial, and that such a sum be set apart from the assets of the estate and held by the executors or some other persons, as trustees, as will produce that amount monthly to be paid to her during the remainder of her life.

The original agreement of separation and the one modifying it as to the amount to be paid only are attached to the complaint and made a part of it.

The trustee named in the separation agreement is made a defendant, as such, and it is alleged that such trustee claims, as do the executors, that all liability under that agreement ceased on the death of Justin L. Barnes.

The defendant executors demurred to the complaint on the ground that it appears upon the face of the complaint that the plaintiff has no legal capacity to sue, in that the action should have been brought by the trustee named in the separation agreement; and upon the further ground that the complaint does not state facts sufficient to constitute a cause of action.

The learned trial court overruled the demurrer and we think properly. The plaintiff is the real party in interest under the separation agreement. The trustee had no title and no interest in the money except to receive it and pay it over to the plaintiff. The trustee would in no way suffer from breach of the agreement, and on breach whatever cause of action existed came to the plaintiff. The precise question was passed upon by this court in *Recknagel*v. *Steinway*(105 App. Div. 561; affd. as to this point, 184 N. Y. 614). If any answer were needed, however, to this proposition, it is found in the complaint which alleges that the trustee, who is made a defendant as such, disputes plaintiff’s right. This is sufficient reason for the plaintiff bringing the action and making the trustee a party defendant. Indeed, there was no occasion for nam*195ing a trustee in the articles of separation, for a contract between the husband and wife alone, made while actually living apart, would have been entirely legal and capable of enforcement. (*Winter*v. *Winter,*191 N. Y. 462.)

The appellants insist, however, even if the action be properly brought in the name of plaintiff, that the amended complaint fails to state a cause of action because the testator was under no obligation to support his wife after his death.

It is true that a husband cannot be compelled to support his wife except during his lifetime. Where a decree of absolute divorce or of separation is granted against him by a court, alimony will cease on his death, notwithstanding the decree should provide that he pay the stipulated alimony during the life of the wife and direct that he should give security to insure its payment. *(Wilson*v. *Hinman,*182 N. Y. 408.) When a decree of divorce is granted to an innocent wife against a guilty husband, the allowance of alimony to her is a continuance of his marital duty of support which the the courts have power to compel him to furnish notwithstanding the dissolution of the marriage. This duty being upon him only during his lifetime the courts cannot compel him to make provision for its continuance after his death. But he can voluntarily make such provision for support to continue after his death by contract or otherwise if lie sees fit so to do. By the contract annexed to the complaint appellants’ testator agreed *“*to make such payments for the term of her (plaintiff’s) natural life,” and the modified agreement provided for the increased payments to be made according to the original contract. The appellants’ testator could make such a contract if he desired. Eor was it necessary in express terms to state in the contract that it should be binding on his legal representatives. There is nothing in the language of the contract showing that he intended to bind only himself. 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.) In *Wilson*v. *Hinman (supra)*Cullen, Ch. J., after discussing why a mortgage given by the husband pursuant to decree of the court to secure the payment of compulsory alimony, would not be enforced after the death of the husband because the courts had no power to *196compel him to provide for the wife’s support except during liis lifetime, says : “ It may very well be that by the agreement of the parties alimony might be awarded in a different form from that provided for in the statute; that is to say, the parties might agree that a gross sum should be paid as alimony, or that an allowance should be made to the wife which would bind the husband’s estate after his death. An agreement of that character would in no way contravene public policy, and the performance of it would, doubtless, be enforceable by the courts.” Such agreemfents were enforced in *Carson*v. *Murray*(3 Paige, 483), *Magee*v. *Magee*(67 Barb. 487), and in *Mann*v. *Hulbert*(38 Hun, 27), and it was deemed an entirely proper and binding agreement in *Galusha*v. *Galusha*(116 N. Y. 635).

It is urged that the provision of the contract with respect to the plaintiff relinquishing her dower was ineffectual for that .purpose, and that, therefore, it is inequitable to permit her to enforce the contract and thus obtain both dower and monthly payments for her support.

The payments provided for by the contract constitute a pecuniary provision made in lieu of dower, and if she seeks and obtains that she will be estopped from claiming dower in addition. *(Jones*v. *Flem*ing, 104 N. Y. 418; *Dworsky*v. *Arndtstein,*29 App. Div. 274.)

We see no reason why an equitable action under the peculiar facts set forth will not lie. Manifestly the Surrogate’s Court cannot make such a decree as is necessary to preserve out of the estate a fund from which payments can be made to the plaintiff. While plaintiff has the right to institute a legal action for each monthly payment as it falls due, and for past unpaid installments, such actions would not necessarily prevent distribution of. the estate by the executors. The procedure adopted in *Carson*v. *Murray (supra)*would seem to be the only one to .effectually preserve plaintiff’s rights, and for such a decree an equitable action is a necessity.

The interlocutory judgment should be affirmed, with costs, and the defendants permitted to withdraw their demurrer and answer upon payment of costs of this court and of the court below.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment affirmed, with costs, with leave to defendants to withdraw demurrer and answer on payment of costs.