dissenting:
I am, with deference, unable to bring myself in accord with the majority view.
The authorities on the general question of the liability of a father for the support and maintenance of his minor children after the date of his death are not in accord. However, in the recent case of Mahaffey v. First National Bank, 231 Miss. 798, 97 So. 2d 756, this Court has definitely approved and adopted the view that the liability of a father to support his minor child may be made to survive his death by contract or agreement imposing such liability. The solution of the question here presented, therefore, turns upon the interpretation to be placed upon the contract entered into in writing on June 9, 1951, between Mrs. Bess Lassiter Lewis and W. Jack Lewis, who were then married but living apart.
The contract obligated W. Jack Lewis to pay to his wife for the support of the two minor children of the parties a stated sum per month beginning July 1, 1951, and fixed the duration of such payments as follows:‘‘ The payments herein obligated to be made shall cease as to each child when she attains her twenty-first birthday, or marries, or dies.” The plain import of this language *738of tlie agreement was to obligate tlie father, W. Jack Lewis, to make the monthly payments for the support and maintenance of his said children until each became twenty-one years of age, or married, or died. Thus the contract enumerated the contingencies upon the happening of which the payments were to cease. The death of the father was not enumerated as one of these contingencies. Under the doctrine of inclusio unius est ex-clusio alterius, the certain designation of the contingencies upon which the payments were to cease was an exclusion of other contingencies, and was, therefore, an exclusion of the death of the father. The terms of the agreement imposing upon the father the obligation to make the payments until each of his children became twenty-one years of age are plain and unambiguous.
If it be conceded, however, that the contract as to the duration of the payments is susceptible of more than one construction, then in order to ascertain the intention of the parties, it should be construed in the light of the circumstances surrounding the parties at the time, and it becomes the duty of the court to consider the nature of the agreement, together with all the facts and circumstances leading up to and attending its execution, the relation and condition of the parties, the nature and situation of the subject matter, and the apparent purpose of making the contract. 17 C.J.S., Contracts, pages 745, 746, 747. What then were the circumstances surrounding the parties at the time, the relation and condition of the parties, and the apparent purpose of making the contract?
W. Jack Lewis and Mrs. Bess Lassiter Lewis were married but were living apart, and it was recited in the contract “that they cannot again live and cohabit as man and wife.” Mrs. Lewis had sued her husband for the support and maintenance of herself and the two children born of their marriage. The contract was a settlement agreement arrived at between the parties before entering upon the trial of the case. It is manifest *739from the circumstances surrounding the parties at the time, and from the relation and condition of the parties, and the purpose and nature of the agreement, that the father, W. Jack Lewis, wanted to provide for the support and maintenance of his children during their minority. He was careful to enumerate the conditions upon which the support payments would cease. He could have, of course, by express terms agreed that the contract should be a strictly personal one, terminating upon his death. This, however, he did not do. He no doubt had in mind that the need of a child for food and shelter and other exigencies of life do not end with the death of the father. He therefore made no provision in the contract that the monthly payments should terminate upon his death. On the contrary, his agreement is in plain and unambiguous language and was definite as to the payments and obligations required of him, and it fixed the contingencies upon which such liability would cease, and this without respect to the date of his death. Thus he entered into a solemn contract imposing liability upon him for the support of his children, which liability survived his death. Mahaffey v. First National Bank, supra.
It is generally recognized among the authorities that a father may enter into a contract to make periodic payments for the support of his child during the minority of the child, or for a fixed period, or until the child reaches a certain age, and that the obligation thereunder survives the death of the father and becomes binding on his estate.
In 17A Am. Jur., Divorce and Separation, Section 910, is found the following: “Notwithstanding the conflict of judicial opinion as to whether, under provisions in divorce decrees for regular periodic payments of alimony, the obligations thereunder survive the death of the husband and become binding on his estate, it is generally recognized that the husband may, by contract, provide for periodic payments during the life of the wife so as to make stick payments a continuing charge on his estate *740where lie dies before she does. Thus, an agreement for monthly payments until the death of the wife creates a continuing obligation which survives the death of the husband. The fact that such an agreement is incorporated in a divorce decree or that the decree provides for payments substantially in accord with the agreement does not alter the rule.”
In an annotation appearing in 18 A.L.R. 2d, page 1131 et seq., appears the following: “A provision in a divorce decree that the husband shall make periodic payments for the support of a child ‘during minority’ has been held to manifest the court’s intention that the payment shall continue during such minority even though the father dies in the meantime.”
Further in said annotation, at page 1132, is the following*: “In Smith v. Funk (1930), 141 Okla. 188, 284 P. 638, a separation agreement and property settlement provided that the wife should have the custody of three minor children and that the husband should pay the wife $50 per month for the support of each child during minority. The Court, in granting the divorce, expressly provided that the agreement was ‘in all matters and things fully ratified and confirmed, and the provisions thereof made a part of the decree as though herein fully set out.’ It was held that the wife had a valid claim under the judgment against the decedent’s estate for child support due after the husband’s death.” (Emphasis ours)
In Silberman v. Brown (1946), 72 N. E. 2d 267 (Ohio), where the obligation expressed in a separate agreement incorporated in a divorce decree gave the wife the custody of three children and provided that the father should support said three children until they reached the age of eighteen years, it was held that the contractual obligation to make the payments survived Silberman’s death.
In Simpson v. Simpson, (Fla.), 108 So. 2d 632, it was held that the obligation of the father to assume re*741sponsibility for support payments to Ms cMld throughout a given period of time was not invalidated by the father’s death.
In the case at bar, it is abundantly clear from the plain and unambiguous language of the contract, and from the conditions and circumstances surrounding the parties at the time, and from the purpose and nature of the contract, that Mr. Lewis intended that the support payments should continue for the time specified in the contract, and this without regard to the date of his death.
The fallacy of the majority view is that they would undertake to write into the contract a provision that the support payments would terminate upon the father’s death. The contract contains no such provision. In other words, the majority would make for the parties a contract which they themselves did not see fit to make. This does violence to the principle that it is not the function of the courts to make contracts for the parties but rather to give effect to them as written. It was aptly said in the case of Roberts v. Corum, 112 So. 2d 550, “contracts are solemn obligations and it is not the function of the courts to make contracts for parties but rather to give effect to them as written.”
In the light of the views hereinbefore expressed, I am with deference of the opinion that the decree of /the court below should be reversed.
Hall, Arrington and Ethridge, JJ., join in this dissent.