25 A.2d 779 | Pa. Super. Ct. | 1942
Argued March 4, 1942. The Orphans' Court allowed the widow of Anthony Cheponis her widow's exemption and allowed her to take against the will. The executrix has appealed.
Decedent and appellee were married in 1923. In 1933 they entered into a separation and property settlement agreement. Under its terms, decedent paid appellee $2,914.03 and agreed that she might live apart from him anywhere she might choose; that he would in no way molest her; that he would not, without her consent, attempt to visit her; and that he would make no claim against her estate.1 The agreement contained *517 a release by appellee "of and from all claims, shares, or interest . . . . . . [in his estate], which she now has or may or might have by reason of her said marriage." It contained a release by decedent in substantially identical form.
Appellee offered evidence to show that on or about January 1, 1941, decedent sought a reconciliation; that she refused to consider it except on condition he would cancel the separation agreement; that they mutually agreed to cancel it; and that he thereafter moved into her home where he lived until his death on May 27, 1941. It was conceded appellee never returned any part of the cash paid her under the separation agreement. The court found, "That a condition precedent to the reconciliation was the compliance by the husband with a demand of the wife that the property settlement agreement be cancelled and made void." We are bound by this finding of fact. Pusey's Estate,
It is always competent for a party to a written contract to show, by an express parol agreement based on sufficient consideration, that the contract was subsequently *518
abandoned in whole or in part. Restatement, Contracts (1932) Secs. 406, 407; Himeles v. Rose,
Appellant contends that the only consideration for the cancellation agreement was the reconciliation and that this was insufficient because, since neither party was at fault, reconciliation was a legal obligation. The contention either ignores the existence of the previous separation agreement, or erroneously assumes that it was invalid. The validity is well recognized. Scott's Estate (2),
In the Estate of Kesler,
Although it has not been necessary to consider it in order to dispose of the present appeal, it may be well to point out appellant had no standing to take this appeal in her representative capacity. As executrix, she had no interest in or right to question an order affecting the distribution. It does appear, however, that she was one of the legatees named in the will, and if she were materially affected by this last mentioned rule, we would permit her to continue the appeal in her individual capacity as was done in Holben's Estate,
The order is affirmed.