
    Melton v. Hubbard.
   Evans, P. J.

1. A valid agreement may be made between husband and wife, contemplating' an immediate separation, for a separate allowance to the wife for her support. Chapman v. Gray, 8 Ga. 341; Sumner v. Sumner, 121 Ga. 1 (48 S. E. 727).

2. In such an agreement where the husband promises to pay a lump sum foi' the wife’s support, payable in installments, and the wife dies before all the installments are paid, her executor may sue for the unpaid installments as thej' severally mature.

3. The plaintiff can not include in a suit to recover past-due installments any installment which matured after the filing of the suit.

4. Other than as indicated in the third headnote the special demurrers are without merit.

September 22, 1910.

Complaint. Before Judge Felton. Bibb superior court. April 29, 1909.

'On March 2, 1907, Gustavus T). Melton and his wife, Otis Irene Melton, entered into the following contract: “State of Georgia, County of Bibb. This agreement, made and entered into this the -second day of March, 1907, between Gustavus T>. Melton, of the first part, and his wife Otis Irene Melton, of the second.part, witnesseth: That the said Gustavus I) Melton, husband, and the said Otis Irene Melton, wife, have agreed to a voluntary separation as maD and wife, and héreby agree for the future to live separate and apart; and have agreed upon the following as the terms and conditions of such separation, to wit: That the said Gustavus D. Melton,' husband, agrees to pay to his said wife, Otis Irene Melton, the sum of fourteen hundred and forty ($1440.00) dollars in full, ample, and complete settlement of all claims that his said wife, Otis Irene Melton, may have upon him for alimony either temporary or permanent, or for any present or future support that he may’' owe to her. That in consideration of said sum so agreed to be paid by the said Gustavus D. Melton to his said wife, Otis Irene Melton, she hereby agrees, and does release him from any' claim that she may now have, or may hereafter have, for any alimony, cither temporary or permanent, and for support: and if at any time in the future she may bring suit for divorce, she hereby agrees to release the 'said Gustavus D. Melton from any claim for attorney’s fees to which she might be entitled under the law. The said sum of money so agreed upon as aforesaid by the parties to this contract to be paid by the said Gustavus D. Melton in the sum of forty ($40.00) dollars per month'for the period of thirty-six (36) consecutive months until paid, beginning on the first day of March, 1907, and is to fall due on the first day of each succeeding month until paid. And it is further agreed between the parties to this, contract that the minor child, Eston Melton, the only child of said marriage, is to remain in the possession, custody, and control of her said husband, Gustavus D. Melton, who is alone under this contract chargeable with the support, maintenance, and education of said minor child. The sum of money agreed to be paid under this contract to the. said Otis Irene Melton is to belong absolutely to her, and is not chargeable in any way with the support of said child.” (Signed and witnessed) .

5. Under the ruling in Chapman v. Gray, 8 Ga. 341, the contract sued on is not void as being promotive of a separation and dissolution of the marital relation, and there was no error in refusing to dismiss the petition on general demurrer.

Judgment affirmed.

All the Justices concur, except

Atkinson, J.,

dissenting. I concur in each of the rulings except that expressed ,in the fifth headnote. Under a proper construction the contract in question was not a result of separation, but was intended to promote separation between husband and wife, and contrary to public policy. In addition to the cases cited by the majority see also Hill v. Hill, 74 N. H. 288 (67 Atl. 406, 12 L. R. A. (N. S.) 848; and note, 124 Am. St. R. 966).

Thereafter Mrs. Melton died testate, and her executrix brought suit to recover the installments due under the contract, and also prayed to recover such installments as would fall due pending the suit. The defendant demurred generally and specially to the petition. The demurrers were overruled, and the defendant excepted.

Arthur L. Basher and TT. A. McGlellan, for plaintiff in error.

Ryals, Qrace & Anderson, contra.  