(dissenting)—In my opinion, the trial court correctly construed the divorce decree which was before it in this proceeding.
Under the rule at common law, the obligation to pay alimony is regarded as a personal one and terminates upon the death of either the husband or the wife. But the legislature may empower the courts to provide for alimony payments that will not abate upon the death of the payor, and the language of our statute (RCW 26.08.110) is broad enough to confer such power upon the courts of this state. Murphy v. Shelton, 183 Wash. 180, 48 P. (2d) 247. Cases are annotated in 39 A.L.R. (2d) 1406.
In Murphy v. Shelton, supra, we held that, while the court had the power to provide alimony beyond the death of the husband, it had not exercised it, because it
“ . . . merely provided in general terms that the husband should pay alimony in monthly installments of fifty dollars, without designating how long such payments should run. ...”
We said:
“In the light of the reasoning furnished us by the many cases upon the subject, and at the same time having due regard for the liberal policy obtaining in this state in such matters, we are of the view (1) that the court has the power to prescribe in its decree that alimony shall continue beyond death; but (2) that, if the court exercises such power, the provision for continuance of such payments after death *85must either be specifically stated in the decree, or else its language must be so clear and unmistakable as to indicate that the court intended that the decree should have that effect. In the absence of specific statement or clear intention, it will be presumed that the payments abate upon the death of either spouse.”
In the case before us, the divorce decree provided:
“It is Further . . . Ordered, Adjudged and Decreed that the plaintiff be and she hereby is awarded alimony to be paid by the defendant in the sum of one hundred fifty dollars ($150.00) per month so long as she shall live, or until her re-marriage.”
Similar language was used in the divorce decree which was construed in Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 181 N. E. 779. The court there observed that although the decree did not expressly provide that payments should be made out of the husband’s estate as a charge thereon, it was a reasonable inference that such payments were to be so made, under a decree in connection with which a bond was given as security for payment, and which provided that the wife was to be paid a designated sum per month “during the term of her life” unless she should remarry. The court said:
“. . . In the case at bar, if the judge intended that payments were to cease with the death of the libellee, it would be assumed that he would not have included in the decree a phrase that the payments were to be made ‘during the term of her life,’ for it could not be contended that in the absence of such phrase they would continue after the libellant’s death, and hence its only function can be to show that the payments are to continue during the libellant’s life regardless of the death of the libellee. ...”
In my opinion, the phrase “so long as she shall live” indicates that the alimony shall continue beyond the death of the husband, if he does not survive the wife, unless there is language or there are circumstances showing that this was not the intended meaning of the words. This case is before us on a summary judgment, and there is nothing in the judgment or in the record which indicates that the parties or the court which entered the decree of divorce intended *86that the payments should cease on the death of the husband. In other words, there is nothing before this court to becloud the clear meaning of the words, “so long as she shall live, or until her remarriage.”
The majority, however, have changed the decree and made it read: “so long as she shall live (provided that the defendant shall not predecease her) ...”
It is true that in the case of Scudder v. Scudder, 55 Wn. (2d) 454, 348 P. (2d) 225, a majority of this court held that the import of language in a decree that the husband should pay support money for the children “during their minority” was overcome by the other language and facts which indicated that the parties to a property-settlement agreement did not intend that the obligation of the father should extend beyond his death. There are before us in this case no facts which would controvert the clearly expressed intent that the alimony payments should continue so long as the respondent lives.
In the recent case of DeRiemer v. Old Nat. Bank of Spokane, 60 Wn. (2d) 686, 374 P. (2d) 973, we again recognized that a divorce decree may provide for alimony to be paid after the death of the payor. In that case, however, the decree did not provide that payments should be made so long as the wife should live. She based her claim that the payments should not abate on the death of her husband upon a contention that they were not alimony but a part of the property settlement. That contention was rejected by this court.
The appellant cites the case of Desjardins v. Desjardins, 193 F. Supp. 210, wherein a federal district court in Kentucky held that the duty to pay alimony terminated upon the death of the husband, even though the divorce decree for payments provided “so long as the wife shall live or until she remarries.” The court based its construction of the decree upon a consideration of the fact that the parties were evidently dependent upon the husband’s earnings for an income and there was not an estate sufficiently large to produce an income. We do not have before us in this case *87any evidence concerning the size of the husband’s estate; therefore the reasoning of that case is inapplicable here.
Also cited by the appellant are Pike v. Pike, 208 P. (2d) 380 (Cal. App.), and In re Bernstein’s Estate, 203 N. Y. S. (2d) 191, 25 Misc. (2d) 717. In each of those cases, the property-settlement agreement did not provide that payments should be made during the life of the wife, but this provision was inserted in the decree by the court. The resulting ambiguity was properly resolved in favor of the estate. These cases are likewise not in point.
The parties were elderly people, who had lived together as man and wife and reared a family; and the wife was not in a position to support herself. The divorce was obtained because the husband desired his freedom. It was only natural and just, under the circumstances, that he should agree that his estate should be liable for the support of his wife if she survived him. The decree was open to such a construction and, to my mind, the court properly found that this was the intended meaning of the words used.
The majority, while it seems to say that it finds the decree lacking in the clear expression of intent necessary to sustain a finding that the obligation to pay alimony survived the death of the husband, nevertheless concedes that this may have been the intent of the parties and remands the case for the taking of evidence. It makes this disposition of the appeal without having determined that there is a disputed issue of fact in the case, and my examination of the record reveals that there is none. The case was submitted to the trial court on the pleadings, the decree of divorce, and the uncontroverted affidavit of the respondent; and this court is not in a position to say that the trial court erred in not considering other evidence.
In my opinion, the decree expressed the intent that the obligation to pay alimony should survive the death of the husband, with sufficient force and clarity to satisfy the requirements of the law.
I would affirm the judgment of the trial court.
Finley, Hunter, and Hale, JJ., concur with Rosellini, J.