The agreement which forms the basis of this action seems to have been intended as a substitute for a decree awarding to the wife of George A. Stein way a certain sum to be paid by the husband'- for the support of herself and her children, and its consideration was apparently the relinquishmentUpon- the part of the wife, for herself' and her children, of the right to enforce, from time to time, this-obligation. It appears to have been the intention to substitute the-.liability of William Stein way under the- "agreement for the obligation of the husband. The agreement was, therefore, a continuing agreement, dependent for its vitality upon the continuance of the-obligation of George A; Stein way, the release of which formed' its consideration. • • ¡.
I do not think that it could- for a moment be contended that if' George A. Stein way had procured a decree of-divorce in this State against the plaintiff and had the custody of the children awarded to him, the plaintiff could have continued to- enforce the payments under this agreement, because the obligation-of George A. Steinway to support the plaintiff, which was the consideration for the agreement, would then have ceased. And so, when that obligation is-ended by death, it may be a serious question whether, the continuing-consideration which supports the agreement having failed, the obligations of the agreement have not also ceased. This agreement-being apparently a substitute -for a decree awarding alimony to the plaintiff for the support of herself and her children, and such a decree ending with the death of George A. Steinwáy, it might be argued that the consideration fell in the same way.
*361If this is not the true construction of the relation of the parties* then the plaintiff and her children, upon the death of George A. Steinway, would have the benefit of the enjoyment of his estate and also of the income derived from this agreement, which was given to them because they did not enjoy the support, etc., which they were' entitled' to from George A. Stein way or his estate, he being alive.
It may also be a question whether, by the Dakota divorce, the obligations of the agreement were not ended because of the failure of the consideration. Certainly after that time she could not call upon George A. Steinway for support, although his children might do so. As far as the relations between the plaintiff and George A. Steinway were concerned, they were severed by that decree as effectually as they would have been by death. (Kinnier v. Kinnier, 45 N. Y. 535.) And this consideration emphasizes another view which might be taken in respect to this agreement, and that is, it may be' doubtful as to whether the plaintiff could barter away the rights of her children for an adequate support from their father. It is undoubtedly true that in decrees for alimony the award is usually made to the wife, in case she is the successful party, and the custody-of the children given to her, the award being made for her support and for the care, custody and maintenance of the children. But such allowances are always subject to the supervision of the court, and if there is a change in the Circumstances of the husband, making a more liberal allowance their just right, the court has the power so to give it. Could -the plaintiff, therefore, bar her children, in case they were entitled to 'a more liberal support than that provided for in this agreement, from asserting this right and insisting upon maintenance upon the part of their father ? Manifestly not. The agreement if valid, therefore, would seem to be of such a character that in case the circumstances of the husband grew worse, so that he could not be called upon to give a support equivalent to that furnished by the agreement, the agreement could be maintained; but if there were such a betterment in his circumstances as entitled his children to a more liberal allowance for their support, education and maintenance, then the agreement would be. no protection. This view is emphasized by the fact that the decree of divorce in the State of Dakota which relieved George A. Stein-*362way from the obligation to his wife, did not relieve him from his obligation to his children. It seems to me that these suggestions raise questions as to the sufficiency of. the consideration for this agreement which the defendants ought to be allowed to present to the court for adjudication. -
. Under the pleadings as they stand, the question of the sufficiency of the consideration of the agreement cannot be presented. Section 840 of the Code of Civil Procedure reads as follows: “ A seal upon-an executory instrument, hereafter executed, is only ■ presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed.”
In view of the previous history of legislation upon this subject, it would seem that this question of want of consideration, where the instrument sued upon is a sealed instrumentáis a matter of affirmative defense and must be alleged. It is certainly more of an affirmative defense than that of the Statute of Frauds, which must be pleaded, as has recently been held by our courts.
I, therefore, concur in the opinion of Mr. Justice Ingraham.
Judgment modified by allowing the defendant executors within twenty days to serve an amended answer upon payment of costs in the court below, and as so modified affirmed* * with costs, to respondents to- abide event..