149 Misc. 124 | N.Y. Sur. Ct. | 1933
On February 7, 1921, after an action for divorce had been instituted by the claimant, Lillian C. Tashenberg, against the deceased, Frederick C. Tashenberg, an agreement was made between both parties which, in substance, provided, among other things, the payment of twenty-five dollars per week by the deceased, who was the defendant, for the period of the natural fife of his then wife while she remained unmarried, in the event of an interlocutory judgment of divorce being awarded to Lillian C. Tashenberg.
Frederick C. Tashenberg died September 28, 1931, leaving a last will and testament naming his second wife, Lillian C. Tashenberg (not the claimant), executrix of said will. The first wife petitions this court to compel the payment of a claim of $1,000 by virtue of the above agreement.
It is the contention of the executrix that the agreement was made in contemplation of divorce, and, therefore, void as against public policy. If this contention is correct, the law being that provisions in a judgment for a divorce to pay alimony during the fife of a party cease upon the death of the husband, the claimant cannot collect against the estate.
Claimant relies to some extent upon the case of Lake v. Lake (136 App. Div. 47). In this particular case the facts set forth in the opinion show that on the same day the contract was executed plaintiff commenced an action for divorce, and the court held that it appeared that the contract was executed for the purpose of securing a divorce and was for that reason void against public policy.
In the instant case the action for divorce had been already commenced, and the agreement was made after the commencement. It was stated in the case of Barnes v. Klug (129 App. Div. 192,195): “ It is true that a husband cannot be compelled to support his wife except during his lifetime. Where a decree of absolute divorce or of separation is granted against him by a court, alimony will cease on his death, notwithstanding the decree should provide that
The case of Wilson v. Hinman (182 N. Y. 408, at p. 414) states: “ It may very well be that by the agreement of the parties alimony might be awarded in a different form from that provided for in the statute; that is to say, the parties might agree that a gross sum should be paid as alimony, or that an allowance should be made to the wife which would bind the husband’s estate after his death. An agreement of that character would in no way contravene public policy, and the performance of it would, doubtless, be enforceable by the courts. It is on this ground that the decision in Storey v. Storey (125 Ill. 608) proceeded.”
The rule in the above case was followed by the Circuit Court of the United States for the Western District of New York in the case of Whitney v. Whitney Elevator & Warehouse Company, and the lower court sustained by the Circuit Court of Appeals (183 Fed. 678).
A very recent case, Babcock v. Babcock, involving an agreement very similar to the one now in question, is reported in 147 Misc. 900. It was determined that the agreement was enforcible against the estate.
It is my belief that this agreement was not made in contemplation of a divorce, but was made voluntarily by the defendant in
Having provided therein for payments of twenty-five dollars a week for the period of the natural life of Lillian C. Tashenberg while she remains unmarried, I hold that the claim should be and is hereby allowed, and the prayer of the petitioner for an accounting by the executrix granted.
Let a decree enter accordingly.