The cases cited in the prevailing opinion correctly state the law. The rule of those cases, however, applies to purely personal service contracts. Here, in addition to personal service we have a non-personal element, the obligation to pay money which is founded upon a consideration fully executed upon plaintiff’s part.
Let us suppose that the promise of the deceased so far as personal service was concerned had been limited to a term of five years and the plaintiff had agreed to submit herself to his direction for such period. At the expiration of such term both parties would undoubtedly be relieved from the obligation of the personal service involved. Could it reasonably be contended, however, that the obligation of the deceased to continue payments to the plaintiff for her life would likewise cease? Why should a different rule apply merely because the term set for the rendition of the personal end of the agreement was limited not to any specific term but to an indefinite term measured by life? Or let us suppose that the promise with respect to the monetary consideration had been not for periodic payments extending during plaintiff's fife, but for a lump sum of $10,000, for example. Could it reasonably be contended that by dying the promisor would escape the liability of mailing the $10,000 payment?
In this view I think the complaint states a cause of action. I, therefore, vote for affirmance of the order.
Finch, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.