We are dealing here solely with the construction of a written agreement. That construction may have no aid from any extrinsic facts appearing in the evidence. The intent of the parties and the import of their agreement must be drawn only from *Page 470 the language of the instrument itself. No where within the four corners of that instrument can be found a plain and unambiguous statement that plaintiff was to support the daughter out of her own allowance.
In 1916, the parties then having two children, a son eight years old and a daughter one year old, entered into a separation agreement. After making the usual provision for separation and for living apart, the instrument provided that the son should reside with the father and the daughter with the mother; that the environment of the children should conserve their health, morals and proper development; that the domicile of the children should be the State of New York, from which neither could be removed except upon written consent; that certain rights of visitation should exist under specified conditions; that neither parent should do or say anything which might tend to diminish the love and respect of each child for both parents; that the wife should maintain out of the provided allowance a residence for herself; that a list of unpaid bills to date should be furnished by the wife and paid by the husband, together with a reasonable fee to the wife's counsel. The provisions relating to support and maintenance are as follows:
"X. The party of the first part agrees that he will pay * * * to the party of the second part, so long as she may live and not remarry, during the lifetime of the party of the first part, the sum of fifteen thousand dollars ($15,000) per year, and in the event of the decease of the party of the first part, thereafter the sum of ten thousand dollars ($10,000) per year * * * in lieuof alimony and in full for her support and maintenance. * * * Upon the death or remarriage of the party of the second part, such payments shall at once cease and determine. In addition to the said payments the party of the first part will also pay the salary of the nurse, the medical attendance and the school expenses of the *Page 471 child Evelyn Clayburgh as hereinabove provided. The party of the second part agrees that she will accept the said sum hereinbefore agreed to be paid for her maintenance and support and the other terms and conditions of this agreement as hereinbefore set forth, and agrees that she will not at any time in the future contract or incur any debts or obligation upon which the party of the first part or his estate might or could be held liable or called upon to pay. * * * Upon payment by the party of the first part of the sums in this agreement provided to be paid by him, there shall be no further obligation upon him under this agreement or otherwise, or in any contingency whatsoever, to make any payments or disbursements either to the party of the second part or forher use and benefit, or to any other party for her account or forher maintenance and support."
The provision in the above paragraph, relating to payments for nurse, medical attendance and schools for the daughter, must be read in connection with other provisions of the contract dealing with the same matters. It was provided, in substance, (a) that the daughter's medical care should be entrusted to a specialist in such matters, who in the first instance should be a designated doctor, but whose successor was to be chosen, not by either parent, but in a manner specified; (b) that a woman experienced in the care of children should at all times be employed as a nurse, and if a successor of the then acting nurse were to be chosen, the choice was to be made in the manner specified, with which neither parent had anything to do. In the event of a difference of opinion between mother and nurse as to the child's care, a medical referee was named; (c) the husband was to have the right to nominate three schools, one of which the wife might select for the daughter.
It seems obvious enough that the express agreement of the husband to pay these charges was made to settle *Page 472 in advance any question as to whether such extraordinary items were necessaries; and, further perhaps because it gave the husband a desired measure of control.
It is clear that there was no express or specific provision made with reference to the general support and maintenance of the daughter. Had the distinguished lawyers who prepared this document intended that the annual payment of $15,000 was to cover the support and maintenance of the child, as well as of the wife, it would have been a simple matter to say so. What we find, however, is an iteration and reiteration of the plain statement that the allowance was intended for the support of the wife — "in lieu of alimony, and in full for her support and maintenance;" "to be paid for her maintenance and support;" "for her use and benefit;" "for her account or for her maintenance and support." Moreover, the agreement by the wife, to which attention is called in the prevailing opinion, that she would not at time in the future contract any debts upon which the husband might or could be held liable, can only be read by reason of the context as referring to debts contracted upon her own personal account. So also the provision that upon payment by the husband of the sums provided for there should be no further obligation upon him to make any payments or disbursements. The payments or disbursements referred to are expressly defined as being those for the use and benefit of the wife alone. Moreover, it is to be borne in mind that when the agreement was made the daughter was an infant one year old. It is quite unlikely that either party to the contract contemplated a gradual diminution of the wife's allowance in taking care of the increasing expenses of the daughter as she grew through girlhood and into young womanhood. Upon the husband rested the common-law liability to support the daughter. He ought not to be permitted as matter of law to shift that responsibility to his wife *Page 473 except by an agreement expressed in the clearest terms. The contract, of course, is to be considered as a whole. The matters referred to in the prevailing opinion are to be given whatever weight they are entitled to. At most, as it seems to me, they serve only to cast some doubt upon the intent of the parties and the import of their agreement as expressed in the unambiguous phraseology above referred to. What we have at best, then, is a case for the jury, where the doubtful meaning of the written word may be considered in the light of evidence showing the surrounding facts and circumstances. (Braxton v. Mendelson,233 N.Y. 122, 124; Brainard v. New York Central R.R. Co.,242 N.Y. 125, 133.)
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CRANE, J.; CROUCH, J., dissents in opinion in which POUND, Ch. J., concurs; HUBBS, J., not voting.
Judgment affirmed. *Page 474