
    Ottilie C. Recknagel, Respondent, v. Charles H. Steinway and Others, as Executors of and Trustees under the Last Will and Testament of William Steinway, Deceased, and Louis Von Bernuth, as Trustee under an Agreement of June 24, 1895, Between Said William Steinway and Ottilie C. Recknagel, Appellants.
    
      Contract to pay money to trustees for the support of a daughter-in-law and grandchildren— the daughter-in-law may sue for its breach — when it is not merely a substitute for alimony waived by the daughter-in-law.
    
    William Steinway, as party of the first part, and Ottilie 0. Steinway, as party of tlie second part, entered into an agreement which recited that the said Ottilie C. Stein way was the wife of George A. Steinway, the son of William Steinway ; that the said George A. Stein way, owing to certain weaknesses, infirmities and habits, was unable to support and maintain his wife and his three infant children; that William Steinway was “ desirous of maintaining and supporting the said Ottilie 0. Steinway and of supporting, maintaining and educating the said children in a manner comporting with their position and is desirous that the said children should be maintained, supported and educated under the guidance and direction of their mother, Ottilie C. Stein way.”
    These recitals were followed by an agreement on the part of William- Steinway to pay over,to two persons “as trustees, of and for the use of the party of the second part,” certain annual sums for the support and maintenance of the party 'of the second part-and for the support, maintenance and education of her infant children, until the youngest of the said children or the last survivor thereof should arrive at the age of twenty-one years.
    The only duty imposed upon the trustees was to pay over to Ottilie 0. Steinway the moneys received by them from William Steinway. The said Ottilie 0. Steinway agreed, among other things, that she would not enforce or attempt to enforce any judgment, order or decree of any court entitling her to collect from her husband any alimony, allowance or other provision for the support and maintenance of herself or for the support, maintenance and education of her children. The agreement further provided that the death of the said Ottilie 0. Steinway and of any of her children should effect no change as long as one child should remain living.
    
      JSeld, that in the event of -the breach of the contract by the said William Steinway, the right of action to recover damages for such breach vested in Ottilie C. Steinway and not in the trustees mentioned in the agreement;
    That the obligation of William Steinway under the agreement did not terminate upon the death of his son George A. Stein way, which occurred before the youngest child reached the age of twenty-one years.
    McLaughlin, J., dissented.
    Appeal by the defendants, Charles H. Stein way and others, as _ executors of and trustees under the last will and testament of William Steinway, deceased, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    An appeal is also taken from an order entered in said clerk’s office on the 6th day of June, 1904, setting aside the direction of the court dismissing the plaintiff’s complaint and granting a new trial of the action, which order was granted upon the first trial of the action, the judgment appealed from having been granted upon a. second trial.
    
      Henry W. Taft, for the appellants.
    
      R. Burnham Moffat, for the respondent.
   Patterson, J.:

The plaintiff recovered a judgment in this action against the executors of the will of William Stein way, deceased, for the breach of a contract made between herself and William Steinway, by which contract provision was made by him for the support of the plaintiff and for maintaining and educating her children. At the time the contract was made (June 24, 1895), the plaintiff was the wife of George A. Steinway, a son of W illiam, and there were three children living of the said George A. Steinway and the plaintiff. In the contract the marriage of the plaintiff and George A. Steinway is set forth and the names and ages of their children are stated. It is then recited in the instrument that George A. Stein way, owing to certain weaknesses, infirmities and habits, is unable to support and maintain his wife and to support, maintain and educate the children, and that William Steinway is desirous of maintaining and supporting the plaintiff and of supporting, maintaining and educating the children in a manner comporting with their position, and that he is desirous that the children should be maintained, supported and educated under the guidance and direction of their mother. The agreement then proceeds to provide as follows: That the party of the first part (William Stein way) agrees to pay to two trustees for the use of' the party of the second part (the plaintiff) $6,000 per annum, from the 1st day of July, 1895, to the 1st day of July, 1898, in quarterly payments of $1,500 each for the support and maintenance of the plaintiff, and for the maintenance, support and education of the three children, and thereafter from the 1st day of July, 1898, until the youngest of the children, or the last survivor of them, should arrive at the age of twenty-one years, to pay to the trustees $7,500 annually in quarterly payments; the party of the second part (the plaintiff) agrees that she will support and maintain herself and support, maintain and educate the children and provide ahorne for them out of the proceeds of the sum agreed to be paid by William Stein way to the trustees for her benefit, in such manner as may be most advisable for the welfare of herself and the children, and she agrees that she will not enforce or attempt to enforce any judgment, order or decree of any court or judge entitling her to recover or collect from George A. Stein way any alimony, allowance or other provision for the support and maintenance of herself or for the support, maintenance and education of the three children. It is then provided in the agreement that no explanations, statements, accountings or reckonings shall be demanded by William Steinway of the trustees or of the plaintiff or be made or rendered by the plaintiff or by the trustees as to the manner of the disbursement of the moneys agreed to be paid by William Steinway, except that receipts should be given by the trustees to William Steinway and by the plaintiff 'to the trustees. Provision is then made for George A. Steinway being allowed to visit the children at their home once a month and at hours convenient to the plaintiff; and that in the event of the death of the plaintiff the children shall be placed under the care and supervision of such persons as the trustees, together with William Steinway, may nominate, constitute and appoint; the death of the plaintiff and of any of the children not to affect, except as before mentioned, the terms of the agreement, which' is made binding upon the heirs, executors and administrators of William Steinway. Appended to the instrument is an acceptance by the trustees and an agreement upon their part to perform their duties faithfully.

William Steinway made payments under this agreement until his death, which occurred November 30, 1896. Since that time no payments have been made. The plaintiff obtained a divorce from George A. Steinway on September 26, 1895. No provision for alimony or for the support and maintenance of the children was contained in the decree of divorce. The plaintiff married Carl L. Recknagel December 28, 1895, with the knowledge of William Steinway, who continued to make quarterly payments under his agreement after the divorce and after the remarriage of the plaintiff. George A. Steinway died September 14, 1898. The executors of William Steinway having refused to make payments after his death, this action was brought for a breach of the contract. On the trial a verdict was directed by the court in favor of the plaintiff, and from the judgment entered thereon the defendants’ executors appeal, as does also Louis Von Bernuth, trustee under the agreement above mentioned. Mr. Von Bernuth appears to be the sole trustee defendant, the action having been discontinued as against Mr. Roesler, who was his cotrustee. It is not necessary to refer to the trustee’s appeal as it has not been urged or referred to by counsel.

Two questions are now presented for consideration. The first relates to the right of the plaintiff to maintain the action. We are of the opinion that the plaintiff is the real party in interest under the agreement made between herself and her father-in-law. That agreement was made in form and in effect between those parties only. It was a contract made for the benefit of the plaintiff and of her children, and to supply her with moneys for the purposes stated therein. The trustees were not parties to the main agreement, and the duties required of them were only to receive money and pay it over to the plaintiff, without accountability of any kind to Mr. William Steinway. He contracted with the plaintiff to pay certain moneys to third parties for the benefit of herself and her children. The action is brought for the breach of that contract, and the cause of action does not inhere in the trustees, but in the plaintiff. She is the person damnified by the breach of the covenant made directly with her and with no one else. The gentlemen described as trustees were only to be depositaries of funds which they were to pay out when received, and there was no other active duty imposed upon them.

The serious contest relates to the character and scope and legal nature of the contract, and the defendants insist that in view of the recitals of the instrument and the surrounding circumstances under which it was executed and delivered, it would appear that it was intended by the parties thereto purely as a substitution of William Steinway to perform the legal obligation resting upon George A. Steinway to support his wife and family, and, therefore, that all obligations assumed by William Steinway under that instrument ceased with the death of his son George. We do not gather from any of the sources referred to by the appellants that the contract was one by which William Stein way only assumed the duty and obligation imposed by law upon his son to support his family. We are unable to see how, in view of the provisions of the contract itself, it can be successfully claimed that the obligation assumed by William Steinway was one that would terminate upon the death of his son. So far from the contract being one by which William Steinway simply substituted himself in his son’s place to furnish support to that son’s family with an implication that the contract was to endure only so long as George Stein way lived, we conceive that in ■view of the surrounding circumstances under which it was made it was intended by William Steinway to be one making provision for the support and maintenance of the plaintiff as well as for the support, maintenance and education of her children until the youngest child should attain the age of twenty-one years. The recitals are only statements of the inducement which led William Steiiiway to make the family arrangement embraced in the contract. It is not urged that the contract was not upon a sufficient consideration. George A. Steinway, in consequence of weaknesses, u infirmities and habits ” is declared to be unable to support and maintain his wife and children, and William Steinway was desirous ‘of supporting and maintaining and educating his grandchildren in a manner comporting with their position, and was desirous that they should be maintained, supported and educated under the guidance of their mother. Those recitals in connection with the provision of the contract that the payments were to be made until the youngest of the children or the last survivor of them should reach the age of twenty-one years indicate that it was in William Steinway’s mind to provide for the support, education and maintenance of the children during the minorities of those children and until the youngest should attain full age; and, further, the contract expressly provides that the death of the plaintiff or of any of the children shall effect no change, except ■as thereinbefore provided in the terms of the agreement, so long as one child shall remain living. Implications cannot be read into this contract in violation of or antagonistic to its express terms and clear provisions. If William Steinway had intended to limit his obligation to the lifetime of his son George, it would have been very easy for him to have said so. There is nothing in the proofs authorizing the inference that the contract was to become inoperative and the obligation of William Steinway was to cease if his son George died within a month or a year or at any other period after the execution of the contract. When it was made, William Steinway knew the exact situation of the plaintiff and of her intentions with respect to procuring a divorce from her husband. He knew it was in contemplation, and although the plaintiff stipulated to make no claim for alimony or for the support of the children against her husband, that mere coincidence does not authorize the court to write into this agreement that the provision made was only by way of substitution for alimony and support of children under a decree which provision would expire with the death of her husband. That which induced William Stein way to make the contract was his desire to provide for the proper maintenance and support of his daughter-in-law and her children for fixed periods of time and for the education of the children during these periods. We" think that the terms of the contract are sufficiently clear and explicit in themselves to show that the theory of the appellants that William Steinway merely made a substitutionary agreement binding himself only to do that which his son was obliged to do by law, is altogether inadmissible. No question is made as to the measure of damages.

The judgment should be affirmed, with costs.

Ingraham and Lahghlin, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

In the consultation on this case the late Presiding Justice Van Brunt and I dissented from the conclusions of the majority of the court. The grounds upon which we dissented were identical, and the presiding justice was assigned to express our views in an opinion. This opinion, which was his last judicial act, he prepared .on the day before his death. I adopt it as my own. The opinion is as follows:

Van Brunt, P. J.:

I cannot concur in the conclusion arrived at by the majority of the court. Upon a reading of the agreement which forms the basis of this action it seems to me clear that the sole intention of the parties was that William Stein way should assume the obligations which rested upon his son, George A. Steinway, to support his wife and family, and to that end he agreed to contribute to her the sums of money provided for in said agreement.

The agreement referred to reads as follows:

Agreement made and entered into this twenty-fourth day of June, 1895, by and between William Stein way, party of the first part, and Ottilie C. Stein way, party of the second part, witnesseth :
Whereas heretofore and on the 17th day of April, 1888, George A. Stein way, son of William Steinway, and Ottilie C. Steinway were married; and
“ Whereas heretofore there were born to the said George A. Steinway and Ottilie C. Steinway, three children, namely, Ottilie Marie, born January 28, 1889, Clara Beatrice, born August 4,1890, and Gertrude Marguerite, born November 18, 1892; and
“Whereas the said George A. Steinway, owing to certain weaknesses, infirmities and habits, is unable to support and maintain the said Ottilie 0. Steinway, and to support, maintain and educate the said children; and
“Whereas the said William Stein way is desirous of maintaining and supporting the said Ottilie 0. Steinway and of supporting,, maintaining and educating the said children in a manner comporting with their position and is desirous that the said children should be maintained, supported and educated under the guidance and direction of their mother, Ottilie 0. Steinway;
'•'•Now, therefore, in consideration of the premises and of the covenants hereinafter contained, and of the sum of one dollar by each party to the other in hand paid, the receipt whereof is hereby acknowledged, this agreement witnesseth :
First. The party of the first part agrees to pay over to August Roesler and Louis Yon Bernuth, as trustees, of and for the use of the party of the second part, the sum of six thousand dollars per annum, from the first day of July, one thousand eight hundred and ninety-five, to the first day of July, one thousand eight hundred and ninety-eight, in quarterly payments of fifteen hundred dollars; each on the first days of July, October, January and April, in each of said years, for the support and maintenance of the said party of the second part and for the support, maintenance and education of the said Ottilie Marie, Clara Beatrice and Gertrude Marguerite,, children of the said George A. Steinway and of the party of the-second part, and thereafter, that is, from the first day of July, one-thousand eight hundred and ninety-eight, until the said Gertrude Marguerite, the youngest of the said children, or the last survivor of said children, shall arrive at the age of twenty-one years, to pay unto the said August Roesler and Louis Yon Bernuth, as trustees, as aforesaid, the sum of seven thousand five hundred dollars annually, in quarterly payments of one thousand eight hundred and seventy-five dollars each, on the first days of July, October, January and April, in each of said years.
Second. Said party of the second part covenants and agrees, that she will support and maintain herself, and support, maintain and educate the said children Ottilie Marie, Clara Beatrice and Gertrude Marguerite and provide a home for them out of the proceeds of the sums hereinbefore agreed to be paid to the said trustees for her benefit, in such manner as may be most advisable for the welfare of herself and the said children ; and the said party of the second part further agrees that she will not enforce or attempt to enforce any judgment, order or decree of any court or judge entitling the party of the second part to recover or collect from the said George A. Steinway, any alimony, allowance or other provision for the support and maintenance of herself or for the support, maintenance and education of the said Ottilie Marie, Clara Beatrice and Gertrude Marguerite.
Third. No explanations, statements, accountings or reckonings shall be demanded by the party of the first part of the said trustees- or of the party of the second part or be made or rendered by the said party of the second part, or by said trustees, as to the manner of the disbursements of the moneys hereinbefore agreed to be paid,, except that receipts for the quarterly payments shall be given by the said trustees to the party of the first part, and by the party of the second part to the said trustees, upon the delivery quarterly of the sums hereinbefore agreed to be paid.
“Fourth. The party of the second part hereby covenants and agrees to permit the said party of the first part or the said George A. Steinway to visit and see the said children at least once in each month at their home for a reasonable time and at hours convenient to the party of the second part and conducive to the welfare of the said children.
“Fifth. In the event of the death of the party of the second part said children, Ottilie Marie, Clara Beatrice and Gertrude Marguerite, shall be placed under the care and supervision of such person as the above-mentioned trustees, together with the party of the first part may nominate, constitute and appoint. The death of the party of the second part and of any of the children shall effect no change except as hereinbefore provided in the terms of this, agreement so long as one child shall remain living.
Sixth. In the event of the death of either of the said trustees the survivor may, with the party of the first part, appoint in writing a successor to the trustee so deceased, and such successor shall thereupon have all the powers and duties of the deceased trustee.
“Seventh. This agreement shall be binding upon the heirs, executors and administrators of the party of the first part.
“In witness whereof, the parties hereunto have hereunto set their hands and seals the day and year first above written.
. “WILLIAM STEIN WAY [seal]
“In presence of OTTILIE C. STEIN WAY [seal]
“Aug. Roesler, Jr.”

■ It will be seen that the moving consideration for the execution of the agreement is that George A. Steinway, owing to certain weaknesses, infirmities and habits, was unable to support and maintain his wife and children, and that William Stein way was desirous of undertaking this duty in his stead. This is the sole consideration which is recited in the agreement, or which the evidence affords. It is to be observed that there is no recitation in the agreement of any financial inability upon the part of George A. Stein way to fulfill his obligations to his wife and children. His inability in the agreement is said to be because of certain weaknesses, infirmities and habits, and nothing else. ' That this agreement was intended between the parties only to take the place of the obligation of George A. Steinway towards his wife and children is further evidenced by the fact that the plaintiff, the then wife of George A. Steinway, agreed, in view of this provision made for her and her children by William Stein way, not to enforce or attempt to enforce any judgment, order or decree of any court or j'udge entitling her to recover or collect from George A. Stein way any alimony, allowance or other provision for the support and maintenance of herself, or for the support, maintenance and education of her children.

If there was any doubt as to the effect of the recitals to which attention has been first called, it would seem to be absolutely certain, in view of this agreement upon the part of the plaintiff, that there was an understanding of all the parties that the agreement was to stand in the place of the legal obligations which George A. Steinway had to support his wife and infant children. The very term for which the agreement was to last is a further indication in the •same direction, namely, that when George A. Steinway’s obligation to support his infant children ceased by the arrival at age of the youngest survivor of them, the agreement was to end.

If this is the fact, then the consideration to support this agreement only lasted so long as the duty rested upon George A. Steinway. It was to fulfill his obligation, and when his obligation ended there was no further consideration whatever upon which this agreement could rest.

It may be said that the last clause of the 5th paragraph of the ¡agreement, which says that the death of the party of the second part and of any of the children shall effect no change except as hereinbefore provided, in .the terms of this agreement, so long as ■one child shall remain living, militates against this theory. That this clause is not to be literally construed is evident from the fact that it is in hostility to the provision that the agreement was to terminate when the youngest surviving child arrived at twenty-one years. It is not contended that it was the intention of the parties that this obligation upon the part of William Steinway should continue so long as any of the children should live. It is clear, therefore, that this provision must be read in connection with the recitals ■of the agreement and the active part thereof relating to the payment of the annual stipend. I cannot see, taking all the provisions •of this agreement together, how any other conclusion can be arrived .at than that it was intended, as already stated; to be a substitute for the obligations of George A. Stein way to support his wife and infant •children. The parties evidently never contemplated the contingency that George A. Steinway might die before his youngest surviving child became of age.

It is not claimed that there was any consideration whatever, if it was not this. Certainly the evidence discloses none. On the contrary, it shows that there was no other consideration. When that consideration fails, how can the agreement be supported ?

If this is not the true construction, then we have this anomaly: George A. Steinway’s wife and children are receiving this allowance, undoubtedly based on his obligation and financial ability to support them, and also have the benefit of his estate, which presumptively was the basis of his obligation to contribute to such support.

It seems to me that this agreement, notwithstanding its language, must be construed, in view of its evident consideration, precisely the same as decrees of divorce were construed prior to the time when the court had power to alter the provisions of such decrees in respect to alimony after they were entered. The usual form in. which such decrees read was that the husband (the defendant) should pay to the wife (the plaintiff) a certain sum for her support and maintenance as long "as she should live. This obligation, notwithstanding the broad language of the decree, terminated with the; death of the defendant, the husband. (Field v. Field, 15 Abb. N. C. 434.) Nowhere in the books can be found a case where the» estate of the deceased husband has been compelled to pay alimony, notwithstanding the general language of the decree.

There might have been some question as to the measure of damages, but as no point has been raised in respect thereto it is not necessary to consider the same.

The judgment should be reversed.

Judgment affirmed, with costs.  