(dissenting). The petitioner is the former wife of the decedent, and the petition asks that she be considered a creditor of the estate so that she may continue to receive the sum of $75 weekly for her support pursuant to the terms of a separation agreement entered into between her and the decedent in 1965.
The separation agreement was of a normal routine type and provided that the furniture and household items become the exclusive property of the wife, and that she have the custody of the two children, and also provided for their support. The issue have since reached their majority. Subsequently, the wife obtained a foreign decree of divorce, which incorporated but did not merge the separation agreement. The husband died in October, 1972. The wife relies on the provision in the agreement for the payment to her "until her death, or remarriage” for the continuance of the support payments from her husband’s estate beyond the date of his death.
The Surrogate properly found that she was not so entitled for the reason that it appeared from the other terms of the agreement that the "intent” of the parties did not provide for the payments to continue beyond the husband’s death. The other terms of the agreement that the Surrogate postulated were that the payments for the children would survive the husband’s death and "be a charge against his estate”. Further, he obligated himself to maintain a life insurance policy in the sum of $10,000 "irrevocably payable to the Wife”.
The case of Wilson v Hinman (182 NY 408, 412) made it clear that in the absence of specific agreement, support and alimony payments to the wife do not "survive her husband’s life as a claim against his estate.” (See, also, 1 Lindey— Separation Agreements and Ante-Nuptial Contracts;, § 15, p 15-96 and June 1974 Cum Supp, § 15, p 210; 2 Foster and Freed, Law and the Family, Effect of Death of Spouse, § 25:6.) Only recently, this court in Winter v Winter (39 AD2d 69, affd without opn. 31 NY2d 983) interpreting section 236 of the Domestic Relations Law again made this clear. (See Foster and Freed, supra, 1974 Supp to § 22:14, p 66, n 20.)
There is no specific provision for payment from the estate, and the language used referring to the "death, or remarriage” *409of the wife is obviously limited by the death of the husband. This is the more obvious by the various provisions in the agreement which cover circumstances in the event that he should die.
The majority now mandates a seemingly futile hearing for the elaboration of the obvious. What is more, problems of the Dead Man’s Statute (CPLR 4519; see Phillips v Kantor, 31 NY2d 307) and the paroi evidence rule will come into play (see Fisch, New York Evidence, § 56 et seq.), all quite unnecessarily.
I would affirm.
Markewich, J.P., Lane and Lynch, JJ., concur with Lupiano, J.; Kupferman, J., dissents in an opinion.
Order, Surrogate’s Court, Bronx County entered on September 3, 1974, reversed, on the law, without costs and without disbursements, and the matter remanded for a hearing as to the issue of whether, under the separation agreement between petitioner and her former husband, after the latter’s demise, petitioner has a cause of action against his estate to recover the prescribed weekly payments for her support for the period beginning at his death and continuing until her death or remarriage.