dissenting. The inequity inherent in the decision of the court is apparent. At the time of the divorce in November, 1969, Raymond P. Kendall received a lion’s share of the property. Virginia Kendall was assured by agreement of the parties of payment of $42,-000.00 in alimony to be paid for a fixed ten year period. These payments were made a lien on the property given to Raymond. Raymond remarried in April, 1970, and died in August, 1974. Under the court’s present decision the new wife of a little over four years receives all the property of Raymond, and the former wife’s right to $22,050.00, remaining due under the agreement with Raymond, is cancelled. I respectfully dissent. In my opinion neither justice nor the law requires such a result.
The Kendalls entered into a contract which was approved by the court and made a part of the divorce decree. Under this contract Raymond P. Kendall agreed to pay Virginia Kendall alimony in the sum of $350.00 per month for a period of ten years. Such payments were to be terminated only in case of the death or remarriage of Virginia. Neither of these events have occurred. There was no provision in the contract providing for an earlier termination in event of Raymond’s death. The parties contracted for a definite number of payments to be made and the contract should be enforced according to its terms.
The court relies on In re Estate of Sweeney, 210 Kan. 216, 500 P. 2d 56. The agreement in Sweeney did not provide for payments to be made for a fixed period. The payments were to continue so long as the wife lived and remained single. There was no way the maximum amount of the payments could be determined until the death or remarriage of the wife. No lien against property of the husband was provided for in that contract. The rule in Sweeney *719provides in substance that when payments of alimony under an agreement are not for a definite or fixed period the obligation terminates upon the death of the husband in the absence of a provision in the agreement which makes intent to continue the obligation to pay after the death of the husband unmistakably clear.
Two provisions in the present contract, in my opinion, make this intent unmistakably clear. First, the provision that the husband pay $350.00 per month for a fixed period of ten years. Second, the further provision in the contract which subjects the property of the husband to a lien to assure payment of the alimony, the lien to be effective on the date the property settlement agreement is incoiporated in the -final divorce decree.
This latter provision is meaningless unless the parties intended payment of the full $42,000.00 (120 payments of $350.00), subject only to the death or remarriage of the wife. The court interprets this provision to impose no lien on the date of the incorporation of the agreement in the final divorce decree. The court indicates no lien would arise until a payment was missed. This overlooks the plain wording of the provision and the reason for inserting such provision in the agreement in the first place.
It is obvious to me that this provision in the agreement was to protect the wife and assure payments for her support for a fixed period.
A further provision in the agreement provided: . . The wife shall have a lien on the property of the husband to secure the payments as outlined herein; and it is further understood and agreed by the parties hereto that the same cannot be modified or changed except by the terms of this agreement and according to the provisions set forth in said agreement.”
The parties to a divorce action have the right to contract in a separation agreement that alimony payments to the wife shall continue after the former husband’s death, and where such agreement is approved by the court and incorporated in the decree, it may be enforceable against the husband’s estate. (In re Estate of Sweeney, supra, Syl. ¶ 2.)
I would enforce the lien under the contract of the parties and require continued monthly payments of $350.00 for the remainder of the ten year period, subject to termination of the payments on death or remarriage of Virginia Kendall.
Prager, J., joins in the foregoing dissenting opinion.