207 Pa. 309 | Pa. | 1904
Opinion by
By an agreement in writing, under seal, duly acknowledged, a married woman relinquished her right of dower and all other right, claim, and interest whatsoever in the estate of her husband, and agreed that at his death his estate should vest in his heirs or in such persons as by will he should appoint, in like manner as if they had never been married. At the same time her husband executed an agreement relinquishing all interest in her estate. These agreements were alike and conferred equal rights. Their purpose as stated in the preambles was to give to each the free and absolute control and disposal of his or her separate property. The consideration in each was one dollar and the like covenant of the other party.
The agreement into which the wife entered was entirely free from fraud, concealment or overreaching. She was her husband’s second wife, married late in life, and not the mother of his children, who were of full age at the time of her marriage. Each party had a separate estate, and hers was a third lai’ger than his. The agreement was not only fair and conscionable but decidedly to her advantage. After the death of her husband, she attempted to repudiate the agreement into which she had entered, on the ground that it was not legally binding and she instituted proceedings in partition to have her dower interest ascertained and set apart. We have then the single question whether a post-nuptial agreement reasonable in its terms, entered into with a full knowledge of the facts and for an adequate consideration, by which a wife releases her- in
If this agreement had been made in the contemplation of an actual and immediate separation even before the act of 1893, there could be no doubt of its validity: Dillinger’s Appeal, 35 Pa. 357; Hitner’s Appeal, 54 Pa. 110; Commonwealth v. Richards, 131 Pa. 209; Scott’s Estate, 147 Pa. 102. While the common-law disability of a married woman remained, except as modified by statute, her contracts .when unobjectionable might be enforced through the medium of equity. Equity for some purposes regarded husband and wife as distinct persons, capable of contracting with each other, notwithstanding their legal unity : Williams’s Appeal, 47 Pa. 307. In Burkholder’s Appeal, 105 Pa. 31, a post-nuptial contract to settle differences between husband and wife which had led to their separation, and the object of which was to adjust their property rights in order that they should thereafter live together in peace and harmony, was upheld on the ground that it was enforceable in equity. That a separation is provided for in an agreement between husband and wife goes to the consideration only and does not effect her power to contract.
If there was doubt before on this subject, it was settled by the act of June 8, 1893, which gives to a married woman the same right and power that any other person has to acquire, possess, control and dispose of any kind of property in possession or expectancy, and to make any contracts that may be necessary, appropriate or advantageous to the exercise and enjoyment of the rights and powers granted, excepting only certain contracts named.
The right of the executors of the decedent’s will to object to a partition was not directly raised by the answer to their petition for a rule to vacate the proceedings, and does not appear to have been considered by the orphans’ court. It is not the subject of any of the assignments of error, and will not be considered.
The order of the orphans’ court is affirmed at the cost of the appellant.
