The husband successfully prosecuted a suit for divorce against his wife. The contract was executed pending final decree. In such circumstances, it is difficult to understand why she should be placed in a more favored position than a wife against whom there is no cause for divorce. Of course, if the contract, beyond peradventure, created such anomalous situation, the meaning would have to be carried out, but I submit that the underlying purpose of the contract, as appears from the body thereof, was not to create an anomaly. However dutiful a wife may have been, the law does not award her a fixed income from her deceased husband's estate.
Analysis of the instant matter should start with the fundamental and familiar postulate that alimony is money required by law to be paid by a derelict husband for the support and maintenance of the wife who has divorced him. The principle is grounded on the legal concept that a husband whose shortcomings have caused disruption of the marriage should not be permitted to escape his moral and legal duty of providing reasonable support for his wife. Alimony ordinarily terminates with the husband's death. These basic propositions must be deemed to have been known and understood *Page 418 by the parties and their counsel when the contract was executed. From such background, examination must be made of the phraseology they employed.
Here is the vital provision: "That the party of the first part (Dr. Jennings) will pay unto the party of the third part (Mrs. Jennings), for the sole and exclusive use and benefit of the party of the third part, as and for her support and maintenance, and for so long as she may live, or until she shall again be married, as provided in the paragraph next following, the sum of One Hundred ($100.00) Dollars for each and every month, * * *."
Note that Dr. Jennings did not expressly attempt to place any obligation on his estate. The circumstances disclose that his estate could not justly bear such burden. It was purely a personal undertaking. Ex necessitate, it must terminate at his death. He said, in effect, "If I live, I shall pay to my divorced wife one hundred dollars per month as long as she may live." In reality, it was a contract for alimony during their joint lives. He was a man of limited property holdings — insufficient to justify the placing thereon of a burden such as the widow now claims, to the practical exclusion of their children. While he lived and could earn substantial income from the practice of his profession, the obligation he assumed would not seem to be oppressive, otherwise it will absorb his estate.
The view that Dr. Jennings was creating an obligation only for his life is accentuated by the fact that by the contract there is expressly reserved to the wife her contingent right of dower in his real estate and her statutory right to share in the distribution of his personal estate. The plain intent thus seems to have been that she should be paid alimony as long as Dr. Jennings lived, and that she should share in his estate after his death, the alimony then being at an end.
Judge Kenna authorizes me to state that he concurs herein. *Page 419