I concur in the result reached by the majority insofar as it holds that the minor child should not receive support from the estate of its deceased father except until it reaches its majority and that the trial court should be directed to determine the amount to be allocated to it out of the total support payments until that time. I dissent from that part of the majority opinion which holds that plaintiff, the first wife of the decedent, is entitled to receive any part of the support provided for from the estate of the decedent.
I am of the opinion that Paragraph Sixteenth of the agreement is, and was intended by the parties, to be severable from the balance of the agreement. Paragraph Sixteenth provides that “Subject to the approval by any Court of competent jurisdiction, Husband agrees to pay to Wife the sum of Sixty ($60.00) Dollars per month as and for the support and maintenance of Wife and the minor child of the parties hereto, commencing forthwith and continuing in a like sum each and every month thereafter.’’ The property settlement division was set forth in preceding paragraphs and provided for an almost equal division of the community property of the parties. The provision for $60.00 per month was obviously not considered by the parties as equalizing the division of the property and it was made expressly subject to court approval, which the property division had not been. It seems very obvious that this case does not fall within the rule of the Messenger case (Messenger v. Messenger, 46 Cal.2d 619, 628 [297 P.2d 988]) where a majority of this court held that the alimony provision was clearly for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature. No such provision is found in the case at bar.
*285In plaintiff’s complaint for divorce she made the following allegations: “That there is no community property the result of said marriage of the parties hereto, a property settlement agreement having been entered into by and between the parties”; and “That plaintiff does not have sufficient money, means or property with which to support and maintain herself and the minor child of the parties hereto, and that the sum of $60.00 per month is a reasonable and necessary sum to be allowed to said plaintiff as and for the support and maintenance of said plaintiff and said minor child of the parties hereto.” In its interlocutory decree of divorce, the trial court, in four separate paragraphs ordered (1) that plaintiff be granted a divorce; (2) that plaintiff have the custody and control of the minor child; (3) that defendant pay to plaintiff “the sum of $60.00 per month as and for the support and maintenance of said plaintiff and the minor child of the parties hereto, said payments commencing forthwith and continuing in a like sum on the 23rd day of each and every month thereafter” (emphasis added); (4) that “It Is Further Ordered, Adjudged and Decreed that the Property Settlement Agreement made and entered into between the parties hereto on the 12th day of March, 1948, be, and the same is hereby approved and ratified, and the terms thereof are incorporated herein with the same force and effect as if set forth in full herein.” It therefore clearly appears that both the plaintiff and the court considered that the provision for monthly payments was a separate and distinct thing from the property settlement. The original complaint did not pray for court approval of the property settlement agreement and the court specifically so found in the ease at bar. The complaint set forth, merely, that there was no community property because it had been theretofore divided between the parties and prayed for, on the ground of need, the sum of $60 per month as support for plaintiff and the minor child.
Paragraph Fourth reads as follows: “That each party does hereby waive and quitclaim any right to share in the estate of the other party, either under a Will or by the laws of succession, or by family allowance, or otherwise.” (Emphasis added.) Paragraph Fifth reads as follows: “That each party does hereby accept the provisions herein made for him or for her in full satisfaction of his or her right to the community property of the parties, or other property acquired after marriage by either party, and in full satisfaction of his or her right, if any, to alimony or support and maintenance. *286Neither party shall at any time hereafter contract any debt, charge, or liability against the property or estate of the other party, and, in the event either party shall do so, he or she will save the other party harmless and free from loss occasioned by such act.” (Emphasis added.)
The provisions of the agreement relating to the division of property were incorporated by reference in paragraph Sixth of the decree and ratified and approved by the court. The provision for the monthly payments for the support and maintenance of the plaintiff and the minor child of the parties was set forth in full in paragraph Fifth of the decree of divorce thus indicating that the court, as well as the parties, intended the provision as something separate and apart from the property settlement provisions of the agreement. This provision was therefore merged in the judgment (Hough v. Hough, 26 Cal.2d 605 [160 P.2d 15]). Each party did, by the terms of the agreement, specifically waive any and all right to share in the estate of the other, which provision is inescapable proof that the support payments were not to continue after the death of the one obligated therefor. In the majority opinion it is said that “It is also obvious that the fourth paragraph refers only to any rights to share in the estate not otherwise provided for in the agreement.” (Emphasis added.) In so holding the majority is writing something into both the agreement and decree contrary to the intentions of the parties and the court. The court treated the support provision as something entirely separate and apart from the agreement. The property of the parties was evenly divided and plaintiff in her complaint alleged that “there is no community property” and prayed for support for herself and the child on the ground of need. It would appear that had she considered the monthly payment provision as part of the community property settlement agreement her complaint would have been differently worded. In Parker v. Parker, 193 Cal. 478, 481 [225 P. 447], it was held that provision for permanent alimony is founded upon the legal obligation which the law imposes upon the husband to support the wife, and “that obligation comes to an end upon the death of either spouse. So, regardless of the language used by a court in making a provision in its decree for the payment of alimony, that provision ceases to be effective upon the death of either spouse. But here we have a provision [based upon an agreement to pay the support during the lifetime of the wife] based upon an agreement of the parties, in effect a contract. *287It is not an award of permanent alimony, but an award of a life annuity given in lieu of a division of the property of the spouses. It rests not upon the obligation which the law imposes upon a husband to support his wife, but upon the contract of the parties hereto.” I have heretofore pointed out that a construction of the agreement as a whole (as we are bound to do) shows clearly that the monthly support payments were intended to be separate from the division of property and were not in lieu thereof; that each party waived any right in the estate of the other; that the court specifically set forth the provision for monthly payments in the decree which is now the sum and substance of the parties’ rights. In Roberts v. Higgins, 122 Cal.App. 170 [9 P.2d 517], the court decree awarded support and maintenance to the wife and the appellate court held that alimony terminated on the death of either party. The conclusion appears inescapable that the provision for support insofar as it relates to the plaintiff terminated upon the death of her former husband and that she has no claim against his estate for her support after Ms death.
So far as the minor child of the parties is concerned a different problem is presented. We held in Taylor v. George, 34 Cal.2d 552 [212 P.2d 505], that “In California the rule is that the obligation of a father to support his minor child which is fixed by divorce decree or property settlement agreement, does not cease upon the father’s death, but survives as a charge against his estate. (Newman v. Burwell, 216 Cal. 608 [15 P.2d 511]; Estate of Smith, 200 Cal. 654 [254 P. 567]; Estate of Caldwell, 129 Cal.App. 613 [19 P.2d 9].)” In the Newman case supra, the decree had provided that the father pay a certain sum montMy to plaintiff for the support of the minor child of the parties “until further order of court.” This court held that such an obligation continued after the death of the father and during the minority of the child. “And rightfully so, for it is the solemn duty of every father to support his children during their minority, and if he fails to do so, every principle of justice demands that they be thus supported out of his estate.” (Pp. 612-613.)
In view of the conclusion reached by me that the monthly support provision of the agreement and decree was intended by the court and the parties to be severable from the provisions relating to property division in the agreement and not an integrated part thereof, I would reverse the judgment with directions to the trial court to determine what portion of the monthly payment should be allocated for the support *288of the child and the amount necessary to support him during his minority. It follows from what I have heretofore said that plaintiff is entitled to no part of the decedent’s estate and her claim against his estate for her support should be disallowed.