The plaintiff sues in replevin to recover certain certificates for shares of stock in the Hammerstein Amusement Company claimed to belong to him, possession of which is withheld by defendant.
The defendant by way of a separate defense asserts that the stock came into its possession, and is now held by it pursuant to a certain agreement, dated May 3, 1911, between plaintiff, his wife Malvina Hammerstein and the Trust Company of America, predecessor of defendant. This agreement is set forth at length in the answer. It contains a preamble reciting that said Malvina had commenced an action for divorce against plaintiff, which was then pending; that the parties had come to an agreement fixing the provisions which should be made by plaintiff as alimony and for the support of children, issue of the marriage, in the event-' of a final judgment of divorce against the plaintiff. Then followed the provisions referred to which were to become of force and effect in case such a final judgment should be rendered, and should stand in lieu of all alimony or provision for plaintiff’s said wife and the children of the parties. The provisions were that the plaintiff, or his personal representatives in case of his death, should pay to his wife Malvina the sum of $200 per week during the term of her natural life; “also to pay to said party of the third part [the trust company] from and after the death of the party of the second part [Malvina, Hammerstein], the weekly sum of One hundred ($100) dollars for the use of Bose Hammerstein Tostevin, and the further weekly sum of One hundred ($100) dollars for the use of Stella Viola Hammerstein, daughters of the parties of the first and second part, during the term of their natural lives, respectively.” The plaintiff also assigned to the trust company and its successors the shares, of stock which are the subject of the present action, “in trust, nevertheless, and for the use and purposé as follows, that is to say; that said *656shares of stock shall be held by said party of the third part [the trust company] as security for the faithful performance by the party of the first part of the covenants herein contained on his part to be performed.” Concerning the interest in said stock reserved by plaintiff, the agreement further provides: “It is the intention of the parties hereto that the assignment of the shares of stock as hereinabove made shall be only and solely for the purpose of this indenture, and that nothing herein contained shall deprive the party of the first part of any dividends or income from said shares of stock as the owner of said shares of stock or of his voting power as such owner, provided, however, and the party of the first part so covenants, that he will. do nothing to impair the value of said stock, except as to the mortgage to Edward F. Albee, as set forth above.” Provision is made for the sale of said security in case of plaintiff’s default. • There are many other provisions in the agreement not affecting the questions now presented.
It is alleged that this agreement was submitted to the referee before whom the divorce action was pending, and read in evidence and spread upon the minutes and duly approved by said referee. It is also alleged that it was submitted to the court before whom the referee’s report came for confirmation, and approved by.it to the extent that no provision was made, in the decree of divorce, for alimony because suitable provision's had been made therefor by said agreement. The referee’s report and the decree of divorce are attached to and made a part of the answer. It is alleged that Malvina Hammerstein, plaintiff’s wife, died on or about January 9,1912; that plaintiff paid her the stipulated amount down to the time of her death, and thereafter paid the sum of $200 weekly for the use of his daughters down to October 12, 1912, which seems to have been about the time of the commencement of this action. It appears from the referee’s report made part of the answer that plaintiff’s two daughters were both of full age when the agreement was made, having been born in 1881 and 1883 respectively.
A second separate defense in which the decree of divorce above referred to is pleaded as res adjudicaba of every question involved in. this action is also demurred to.
The case as made by the answer is briefly this: That plain*657tiff made an agreement with his wife and a trust company that he would pay to his wife, or to the trust company for her use, the sum of $200 per week, and that after her death he would pay to two adult daughters, or to the trust company for their use, the sum of $100 per week each for their respective lives, and that as security for the fulfillment of this he deposited with the trust company the securities now sought to he replevied. So far as the wife is concerned the agreement has been fully executed and carried out, and the sole question remaining is whether the plaintiff is under any legal obligation to further execute and carry out the agreement for the payment of a weekly sum to or for the use of his daughters, who are not parties to the agreement. This is clearly not the case of the creation of a trust. There is no conveyance to a trustee of any property to be devoted to the use of the daughters and a corresponding parting with ownership thereof by the plaintiff. There is nothing more than a promise to pay in the future and a deposit of stock as security with a reservation to plaintiff of the beneficial interest in the stock until default. In the baldest terms there is only a promise to pay each of his daughters $100 a week for life. I am unable to see that this promise is sustained by any consideration. As has been said, the daughters were not parties to the agreement, and when it was made they were both of full age, and neither plaintiff nor his wife owed to them any duty of support. No consideration moving from the daughters is mentioned in the agreement, and while the natural love and affection which a parent is presumed to entertain for a child will support a gift inter vivos, a deed of conveyance or an executed trust, I do not understand that it will support a bare promise to make a gift in the future, so far as the promise remains unexecuted. (Fink v. Cox, 18 Johns. 145.) I am, therefore, of the opinion that the agreement imposed no obligation upon plaintiff to continue to make payments to or for the use of his daughters; that he had the right to discontinue such payments at any time, and having elected so to discontinue, that he had a right to retake possession of the securities pledged to insure the fulfillment of his agreement.
*658So far as concerns the second separate defense it is manifest that the judgment of divorce between plaintiff and his wife determined nothing respecting plaintiff’s agreement to pay to his daughters after his wife’s death, and, therefore, is not res adjudicaba of the only question involved in this action.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the demurrer to both separate defenses sustained, with ten dollars costs.
Order modified as directed in opinion, without costs to either party. Order to be settled on notice.