Opinion
June 19, 1967
Appeal from a decree of the Surrogate's Court of Ulster County which construed a provision of a separation agreement and imposed upon decedent's estate the liability to provide for the college education of his son. There is a good discussion of the legal issues and of the pertinent authorities in the comprehensive opinion of the Judge of the Surrogate's Court. ( 54 Misc.2d 51.) Petitioner is the former wife of George L. Chilson, Sr., who died December 6, 1965 leaving a last will and testament dated May 27, 1965 by the terms of which he left his entire estate to his widow, the appellant. On July 5, 1961 while a separation action was pending between the petitioner and decedent, they entered into a separation agreement which made certain support provisions not merged in a later judgment of divorce. The agreement also provided, in part: "8. George L. Chilson, Jr. is presently enrolled at Princeton University and it is hoped that Robert will also seek a college education. The husband agrees to pay the entire cost of the college education of both children, including board, tuition, living allowance, and a reasonable amount for books, laboratory fees and similar items. Notwithstanding the foregoing, the husband's obligation for each academic year shall not exceed four thousand dollars ($4,000.00) for each child and shall not extend over more than four academic years. Any expenditure by the husband in excess of such sum or for more than such period shall be solely in the husband's discretion." The agreement further provided by paragraph 16: "This instrument contains the entire agreement of the parties. It may not be changed orally, nor may it be discharged, or modified, or waived in any respect, orally. It shall apply to and be binding upon the parties hereto, their heirs, distributees, executors, representatives and assigns." At the time of testator's death his son, Robert M. Chilson, was 18 years old and a freshman at Rutgers University where the father had paid the necessary expenses as he had for an older brother, George L. Chilson, Jr., who had attended Princeton University. Appellant contends that the separation agreement did not impose upon the husbands' estate the obligation to provide a college education for his son after the father's death. We do not agree. Clearly, where as here, a child is an intended beneficiary under a separation agreement, rather than a mere incidental one, it is proper for the child to advance his claim directly through his guardian ( Forman v. Forman, 17 N.Y.2d 274). It is equally clear that a husband may voluntarily contract to bind himself and his estate for the maintenance and support of his wife and children after his death ( Galusha v. Galusha, 116 N.Y. 635; Matter of Van Arsdale, 190 Misc. 968). The agreement establishes two types of payments. The fifth paragraph provides for the payment of $1,250 per month to the wife for both her support and that of her two children, which sum is to be reduced by $250 upon the death, completion or termination of college education or attainment of the age of 22, whichever comes first, of each child. The eighth paragraph, set out above, provides a separate schedule of payments for the college education of the sons, which payments are not required to be made to petitioner. The terms, conditions and purposes of the two provisions are clearly independent; for example, with a 21 year-old-son in college, there is no diminution in payments to the wife and there is an additional payment of up to $4,000 for the son's educational expenses. When the son reaches 22, the payments to the wife are reduced by $250, but the educational payments continue unabated. The limitations of the ninth paragraph refer to insurance and apply only to the wife's rights. The appellant's heavy reliance upon Cooke v. Cooke ( 208 Misc. 591, affd. 2 A.D.2d 128) is misplaced. In Cooke, the decision (p. 595) that the payments did not survive the death of the husband turned on the fact that the amount of the payments was expressly limited to 50% of the husband's income (if his net income was less than $10,000 per year). Thus, as properly stated by Mr. Justice Eager "if for any reason, all of his income should stop during his lifetime, then, under the express terms of the agreement, the monthly payments would stop. * * * Consequently, when he died and his income stopped, it is natural to assume that the parties also intended that the `alimony' should stop." We are here concerned solely with the right of the son to payment of the expenses of his college education and the result is consistent with the declaration of the parties in the twelfth paragraph of the agreement that the "well-being and development [of the children] shall at all times be of paramount consideration to the parties." Decree affirmed, with costs to respondent payable from the estate. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.