In July, 1915, a separation agreement was entered into between the plaintiff and her husband, George M. Proctor, through the intervention of the defendant Lombard as trustee. This suit was brought to enforce the agreement, and to reach and apply certain property of the husband.
At the trial in the Superior Court he contended, among other defences, that the agreement had been modified and abandoned by the plaintiff, and also that she had broken the agreement on her part. The judge, however, found “ there has been no repudiation or abandonment of the indenture by the petitioner, or modification thereof, and the same continues in force.” We cannot say that the findings were not warranted by the evidence. It could be found that the payments for a time of $30 a month were accepted as part payments of the amount stipulated in the agreement. The plaintiff’s letter to the defendant Lombard might well discharge him as her attorney without terminating her rights under the separation agreement: and in fact she continued to receive monthly payments after writing the letter.
Nor can we say as matter of law that the petitioner forfeited her rights by bringing a petition for separate maintenance in the *216Probate Court after her husband’s failure to make monthly payments. That petition was filed on March 7,1918, there never was a hearing thereon, and on April 10, 1918, it was dismissed without prejudice by agreement of parties.
It is expressly provided in the separation agreement: “Tenth: The trustee above named, or his successor, may take and begin any legal proceedings which shall be necessary and proper to maintain and enforce the rights and obligations of the husband or the wife under this indenture upon application by the other for that purpose, being indemnified from any cost or expense by the party making such application and in case the trustee shall for any cause refuse or neglect to take or begin such proceedings, said husband and wife, and each of them, shall have the right to lake andjbegin such proceedings in the name of the said trustee or his successor for the benefit and at the expense of the moving party.” The trial judge found: “The defendant Lombard has failed and neglected to institute proceedings to enforce the obligations of the defendant, George M. Proctor, as to payments for the separate support .of said plaintiff, and has resisted, in behalf of said George M. Proctor, acting as his attorney, the plaintiff’s attempts to maintain her rights in that respect.” Accordingly, without considering the right of the plaintiff to enforce the agreement in her own name in the absence of the above provision, she is given leave to amend the present bill by substituting the name of the trustee as plaintiff, and thereupon the decree is to be affirmed. St. 1913, c. 716, § 3.
So ordered.