Prior to the commencement of the divorce action involved in this case, the parties entered into a contract settling their property rights and also fixing the amount per month the wife should be entitled to receive from her husband for her "support," in the event a decree of divorce should be obtained. The contract further provided that, in the event the husband should die before the expiration of ten years from date of the contract "and the party of the second part be then alive, then and in that event, the party of the second part shall be entitled to file and have allowed a claim against the estate of the party of the first part in the sum of $3,000.00." This contract was approved by the court and the decree reads in part as follows:
"The defendant is further ordered and directed to pay to the plaintiff during her lifetime for her support a monthly sum of $35.00 per month, the first payment of which became due on November 23, 1932, the next payment to be due January 1, 1933 and the remaining payments monthly thereafter, provided, however, that in the event that the defendant die before the expiration of ten years from date hereof, and *Page 511 the plaintiff be then alive, the plaintiff shall be entitled to file and have allowed a claim against the estate of the defendant in the sum of $3,000.00."
The following conclusions seem clear to me from the contract of the parties and the decree entered thereon:
1. That the wife should receive the monthly sum of $35 "for her support." The duration of those payments was not fixed in the contract but the court said, "during her lifetime."
2. That if the husband died within ten years from the date of the contract and the wife survived him, she should receive the lump sum of $3,000 from his estate; and
3. That if the wife died prior to the death of the husband and within the ten-year period, all right to the $35 per month and to the $3,000 lump sum payment by his estate would be terminated.
From the foregoing, it seems clear to me that the $35 per month was intended as alimony or, as stated in the contract, "for her support"; and that the payment of the $3,000 was a part of the property settlement limited by two contingencies, (a) that the husband die within ten years and (b) that the wife survive the husband. Now, the thing has happened that was not contemplated by this contract, namely, the wife has remarried, and under what I believe to be the better rule of law, the alimony ceased with the remarriage. But that leaves the provision for the payment of the $3,000 an unsatisfied contingent liability. That contingency could in no way be affected by the remarriage of the wife.
In the opinion of Justice Budge, after stating the contention of respondent, "that the required payment of $35 a month was intended to represent 'more than alimony in its strictest legal interpretation and that the monthly payments were intended to be partially in lieu of respondent's rights in the community property,' " it is further said:
"If it be an integral part of the provision for the payment of $35. per month it appears more logical that such provision was inserted for the purpose of securing to respondent, (sec.31-707, I. C. A.) while she was entitled thereto, the payment of $35. per month for her support, should appellant *Page 512 die within ten years and while respondent was still entitled to receive an allowance for her support, and there is evidence that such was appellant's understanding:
" 'MR. JAMES: This division of the property and claim against the estate in case you died, for three thousand dollars; weren't all of these your suggestions:
" 'A. No, sir, you said: 'Your wife should have a little protection supposing you die in a year or two or three; she ought to have something out of the estate.' "
Just how or in what manner it can serve as security does not appear. Mr. James said: "have something out of the estate."
The case of Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700, cited and quoted from by Justice Budge, has, in my judgment, no bearing on the case at bar for the reason that bonds and other securities were placed on deposit with the bank as security for the weekly payments, with authority to the bank to sell and dispose of same if it became necessary to meet the weekly payments. No such question arises here.
Further along in Justice Budge's opinion it is again stated: "In the instant case, however, the facts are such as disclose a right to cancellation of all sums accruing after theremarriage, (italics supplied) regardless of what may be the rule in ordinary cases. " From the foregoing and other statements in the opinion of Justice Budge, it seems clear to me that the opinion holds that the $35 monthly payment iswholly and distinctly alimony and that it is repudiating the contention of respondent, "that the monthly payments were intended to be partially in lieu of respondent's rights in thecommunity property." If that is the holding intended, then clearly the contingent liability to pay the $3,000 is and can be nothing other than a part of the property settlement, and dependent wholly upon the happening of the contingencies required to mature the obligation.
Now, in view of the fact that the respondent has presented her case and relies on the contention "that the monthly payments were intended to be partially in lieu of respondent's rights in the community property" and that the "wife should have a little protection supposing" that if the husband *Page 513 "die in a year or two or three; she ought to have something out of the estate"; it seems self-evident that Justice Budge is repudiating the contention so made by respondent and holding that the monthly payments on the one hand and the contingent liability to pay $3,000 on the other are wholly separate and distinct from each other. It certainly does not meet the issue to hold as hereinabove quoted and then to say, "it is not necessary and we specifically do not determine herein whether this provision is an integral part of the provision contained in the decree for the payment of $35 per month, or whether it is a contract separate and apart therefrom." The two questions are so intimately commingled and related that the decision of the one involves the other.
The case should be so definitely disposed of on this appeal that if and when the contingency arises entitling the respondent to present and collect her claim for $3,000, she may not be confronted with the plea of res adjudicata and the contention that the decision in this case settled the matter as to "all sums accruing after her remarriage."
It is my judgment that the liability for monthly payments for "support" ceased on the wife's remarriage and that the decree remains in full force and effect as to the contingent liability against appellant's estate. The decree with reference to the payment of the $3,000 provided for in the contract, was a part of the property settlement and so decreed and is now resadjudicata, and is not subject to modification by the courts.
The order is reversed and the cause remanded. No costs awarded.
Holden, C.J., and Givens, J., concur.
Petition for rehearing denied. *Page 514