I agree that the contract is not contrary to public policy and that it is founded upon a legal consideration. As I view the contract, however, the intention was that the primary obligation to provide the plaintiff with a regular income of $3,600 a year should be cast upon the plaintiff’s husband, whose duty it was during his lifetime to support and maintain .the plaintiff, and after his death upon his estate, and that the defendant should be hable as surety in the event of nonpayment by his son during his lifetime, and after the son’s death in the event that the son’s estate was insufficient to provide the stipulated income. The situation is peculiar in several respect's. In the first place, although one of the main inducements to the contract on the part of the plaintiff was that she should be assured of a regular and stipulated income, this suit was not instituted by the plaintiff until after her husband’s death and more that eight years after the agreement was made; yet recovery is sought for monthly install-*79meats running as far back as August 1, 1909, crediting scattering payments made by the defendant amounting in all only to the sum of $1,900. This creates no presumption that the husband substantially provided the stipulated income during all these years, but it is very suggestive. In the next place, the complaint studiously avoids any allegation that the plaintiff did not receive the stipulated income from her husband during the eight years following the agreement, and merely alleges that the defendant has failed to pay the plaintiff “ the moneys provided in said agreement to be paid her by the defendant.” Finally, the agreement itself is peculiar in that the only direct promise of the defendant to pay any sum of money as a primary obligor is found in paragraph 6 of the agreement, referring to attorney’s fees, whereas in the vital clause of the agreement, covering the matter of the plaintiff’s income for life, the agreement merely provides: “It is hereby agreed that the party of the second part [the plaintiff] * * * shall be paid on the first of each and every month the sum of three hundred dollars.” The agreement was evidently carefully drawn by a lawyer, and it is only natural to attach some significance to the striking difference in the phraseology employed in fixing the defendant’s obligations in the 5th paragraph as contrasted with the 6th. In the latter paragraph the defendant and his son directly bound themselves to pay the attorney’s fees; in the former it was merely agreed between the three parties to the instrument that the plaintiff “ shall be paid ” a stipulated income. This, together with the fact that the law placed upon the husband the obligation to support and maintain his wife during his lifetime, leads to the inference that the defendant’s obligation was to see to it that the income was paid in the event that the husband failed to pay, and in the event that the husband’s estate was insufficient, to provide the stipulated income after the husband’s death. The learned counsel for the plaintiff justifies his failure to allege non-payment on the part of the husband by insisting that the obligation of the defendant was several and that he was bound as a principal to pay the stipulated income. If this were so, then the plaintiff would be entitled to recover of the defendant, regardless of the income she had received from her husband, This con*80struction is so plainly unreasonable that the plaintiff’s counsel is driven to urging that payment by the husband is a matter of defense for this defendant. But if the defendant were primarily and severally obligated to pay the plaintiff $3,600 a year, it would be no defense for him to allege that some one else had paid the plaintiff $3,600 a year. The unreasonableness of the situation lends force to the conclusion that the intention was that the defendant should pay only in the event that the plaintiff failed to receive the income from her husband during his lifetime, and from his estate after his death. It seems to me that such, too, is a logical conclusion to be drawn from the dissenting opinion, which holds that, so far as the installments accruing during the lifetime of the husband are concerned, the complaint is bad for failure to allege non-payment by the husband. This requirement to allege non-payment by the husband must rest upon the assumption that the defendant is only liable in the event of his son’s failure to pay, an obligation which is in the nature of suretyship. Neither does it seem to me to be quite logical to require the plaintiff to allege non-payment by the husband, in order to make a good complaint for failure to pay installments during the husband’s lifetime, and at the same time omit this requirement with respect to payments from the estate on account of installments accruing after the death of plaintiff’s husband. The situation with respect to the estate further emphasizes the unreasonableness of holding that the defendant is liable primarily and not as surety. There is no allegation that the estate is insolvent or unable fully to discharge the contract obligations of plaintiff’s husband. It is to be presumed that the plaintiff’s husband died intestate (Barson v. Mulligan, 191 N. Y. 306, 324); also that plaintiff’s husband died solvent. (O’Conner v. Gifford, 117 N. Y. 275, 279.) The plaintiff is entitled to a substantial share of her husband’s estate. If it should amount to a sum sufficient to pay the whole or a substantial part of the stipulated yearly income after her husband’s death, it would be most unreasonable to hold the defendant therefor. In such event, the plaintiff would be paid twice, for she would take her share of her husband’s estate free from the debt created by this contract, and at the same time collect from the defendant. *81All of these considerations lead me to the conclusion that the intention of the agreement was that the defendant should be liable not primarily but as surety, and that the complaint is insufficient for its failure to allege non-payment by the husband during his lifetime and the insolvency of his estate.
The order should be reversed, with ten dollars costs and disbursements, and the demurrer to the complaint sustained, with ten dollars costs, with leave to serve an amended complaint within twenty days on payment of costs.
Laughlin and Smith, JJ., concurred; Clarke, P. J., and Merrell, J., dissented.