In the consultation on this case the late Presiding Justice Van Brunt and I dissented from the conclusions of the majority of the court. The grounds upon which we dissented were identical, and the presiding justice was assigned to express our views in an opinion. This opinion, which was his last judicial act, he prepared .on the day before his death. I adopt it as my own. The opinion is as follows:
Van Brunt, P. J.:I cannot concur in the conclusion arrived at by the majority of the court. Upon a reading of the agreement which forms the basis of this action it seems to me clear that the sole intention of the parties was that William Stein way should assume the obligations which rested upon his son, George A. Steinway, to support his wife and family, and to that end he agreed to contribute to her the sums of money provided for in said agreement.
The agreement referred to reads as follows:
“ Agreement made and entered into this twenty-fourth day of June, 1895, by and between William Stein way, party of the first part, and Ottilie C. Stein way, party of the second part, witnesseth :
“ Whereas heretofore and on the 17th day of April, 1888, George A. Stein way, son of William Steinway, and Ottilie C. Steinway were married; and
*568“ Whereas heretofore there were born to the said George A. Steinway and Ottilie C. Steinway, three children, namely, Ottilie Marie, born January 28, 1889, Clara Beatrice, born August 4,1890, and Gertrude Marguerite, born November 18, 1892; and
“Whereas the said George A. Steinway, owing to certain weaknesses, infirmities and habits, is unable to support and maintain the said Ottilie 0. Steinway, and to support, maintain and educate the said children; and
“Whereas the said William Stein way is desirous of maintaining and supporting the said Ottilie 0. Steinway and of supporting,, maintaining and educating the said children in a manner comporting with their position and is desirous that the said children should be maintained, supported and educated under the guidance and direction of their mother, Ottilie 0. Steinway;
'•'•Now, therefore, in consideration of the premises and of the covenants hereinafter contained, and of the sum of one dollar by each party to the other in hand paid, the receipt whereof is hereby acknowledged, this agreement witnesseth :
“ First. The party of the first part agrees to pay over to August Roesler and Louis Yon Bernuth, as trustees, of and for the use of the party of the second part, the sum of six thousand dollars per annum, from the first day of July, one thousand eight hundred and ninety-five, to the first day of July, one thousand eight hundred and ninety-eight, in quarterly payments of fifteen hundred dollars; each on the first days of July, October, January and April, in each of said years, for the support and maintenance of the said party of the second part and for the support, maintenance and education of the said Ottilie Marie, Clara Beatrice and Gertrude Marguerite,, children of the said George A. Steinway and of the party of the-second part, and thereafter, that is, from the first day of July, one-thousand eight hundred and ninety-eight, until the said Gertrude Marguerite, the youngest of the said children, or the last survivor of said children, shall arrive at the age of twenty-one years, to pay unto the said August Roesler and Louis Yon Bernuth, as trustees, as aforesaid, the sum of seven thousand five hundred dollars annually, in quarterly payments of one thousand eight hundred and seventy-five dollars each, on the first days of July, October, January and April, in each of said years.
*569“ Second. Said party of the second part covenants and agrees, that she will support and maintain herself, and support, maintain and educate the said children Ottilie Marie, Clara Beatrice and Gertrude Marguerite and provide a home for them out of the proceeds of the sums hereinbefore agreed to be paid to the said trustees for her benefit, in such manner as may be most advisable for the welfare of herself and the said children ; and the said party of the second part further agrees that she will not enforce or attempt to enforce any judgment, order or decree of any court or judge entitling the party of the second part to recover or collect from the said George A. Steinway, any alimony, allowance or other provision for the support and maintenance of herself or for the support, maintenance and education of the said Ottilie Marie, Clara Beatrice and Gertrude Marguerite.
“ Third. No explanations, statements, accountings or reckonings shall be demanded by the party of the first part of the said trustees- or of the party of the second part or be made or rendered by the said party of the second part, or by said trustees, as to the manner of the disbursements of the moneys hereinbefore agreed to be paid,, except that receipts for the quarterly payments shall be given by the said trustees to the party of the first part, and by the party of the second part to the said trustees, upon the delivery quarterly of the sums hereinbefore agreed to be paid.
“Fourth. The party of the second part hereby covenants and agrees to permit the said party of the first part or the said George A. Steinway to visit and see the said children at least once in each month at their home for a reasonable time and at hours convenient to the party of the second part and conducive to the welfare of the said children.
“Fifth. In the event of the death of the party of the second part said children, Ottilie Marie, Clara Beatrice and Gertrude Marguerite, shall be placed under the care and supervision of such person as the above-mentioned trustees, together with the party of the first part may nominate, constitute and appoint. The death of the party of the second part and of any of the children shall effect no change except as hereinbefore provided in the terms of this, agreement so long as one child shall remain living.
“ Sixth. In the event of the death of either of the said trustees *570the survivor may, with the party of the first part, appoint in writing a successor to the trustee so deceased, and such successor shall thereupon have all the powers and duties of the deceased trustee.
“Seventh. This agreement shall be binding upon the heirs, executors and administrators of the party of the first part.
“In witness whereof, the parties hereunto have hereunto set their hands and seals the day and year first above written.
. “WILLIAM STEIN WAY [seal]
“In presence of OTTILIE C. STEIN WAY [seal]
“Aug. Roesler, Jr.”
■ It will be seen that the moving consideration for the execution of the agreement is that George A. Steinway, owing to certain weaknesses, infirmities and habits, was unable to support and maintain his wife and children, and that William Stein way was desirous of undertaking this duty in his stead. This is the sole consideration which is recited in the agreement, or which the evidence affords. It is to be observed that there is no recitation in the agreement of any financial inability upon the part of George A. Stein way to fulfill his obligations to his wife and children. His inability in the agreement is said to be because of certain weaknesses, infirmities and habits, and nothing else. ' That this agreement was intended between the parties only to take the place of the obligation of George A. Steinway towards his wife and children is further evidenced by the fact that the plaintiff, the then wife of George A. Steinway, agreed, in view of this provision made for her and her children by William Stein way, not to enforce or attempt to enforce any judgment, order or decree of any court or j'udge entitling her to recover or collect from George A. Stein way any alimony, allowance or other provision for the support and maintenance of herself, or for the support, maintenance and education of her children.
If there was any doubt as to the effect of the recitals to which attention has been first called, it would seem to be absolutely certain, in view of this agreement upon the part of the plaintiff, that there was an understanding of all the parties that the agreement was to stand in the place of the legal obligations which George A. Steinway had to support his wife and infant children. The very term for which the agreement was to last is a further indication in the *571•same direction, namely, that when George A. Steinway’s obligation to support his infant children ceased by the arrival at age of the youngest survivor of them, the agreement was to end.
If this is the fact, then the consideration to support this agreement only lasted so long as the duty rested upon George A. Steinway. It was to fulfill his obligation, and when his obligation ended there was no further consideration whatever upon which this agreement could rest.
It may be said that the last clause of the 5th paragraph of the ¡agreement, which says that the death of the party of the second part and of any of the children shall effect no change except as hereinbefore provided, in .the terms of this agreement, so long as ■one child shall remain living, militates against this theory. That this clause is not to be literally construed is evident from the fact that it is in hostility to the provision that the agreement was to terminate when the youngest surviving child arrived at twenty-one years. It is not contended that it was the intention of the parties that this obligation upon the part of William Steinway should continue so long as any of the children should live. It is clear, therefore, that this provision must be read in connection with the recitals ■of the agreement and the active part thereof relating to the payment of the annual stipend. I cannot see, taking all the provisions •of this agreement together, how any other conclusion can be arrived .at than that it was intended, as already stated; to be a substitute for the obligations of George A. Stein way to support his wife and infant •children. The parties evidently never contemplated the contingency that George A. Steinway might die before his youngest surviving child became of age.
It is not claimed that there was any consideration whatever, if it was not this. Certainly the evidence discloses none. On the contrary, it shows that there was no other consideration. When that consideration fails, how can the agreement be supported ?
If this is not the true construction, then we have this anomaly: George A. Steinway’s wife and children are receiving this allowance, undoubtedly based on his obligation and financial ability to support them, and also have the benefit of his estate, which presumptively was the basis of his obligation to contribute to such support.
*572It seems to me that this agreement, notwithstanding its language, must be construed, in view of its evident consideration, precisely the same as decrees of divorce were construed prior to the time when the court had power to alter the provisions of such decrees in respect to alimony after they were entered. The usual form in. which such decrees read was that the husband (the defendant) should pay to the wife (the plaintiff) a certain sum for her support and maintenance as long "as she should live. This obligation, notwithstanding the broad language of the decree, terminated with the; death of the defendant, the husband. (Field v. Field, 15 Abb. N. C. 434.) Nowhere in the books can be found a case where the» estate of the deceased husband has been compelled to pay alimony, notwithstanding the general language of the decree.
There might have been some question as to the measure of damages, but as no point has been raised in respect thereto it is not necessary to consider the same.
The judgment should be reversed.
Judgment affirmed, with costs.