260 Pa. 83 | Pa. | 1918
Opinion by
Margaret Miller McVay is the widow of George Mc-Vay, who died March 9, 1914, and this appeal is from a decree denying her the right to have her dower fixed in the real estate of which he was seized at the time of his death. Her petition for partition was dismissed, on the ground that, by articles of separation executed by her and her husband on March 28,1910, she had released all interest in his estate. In accordance with the terms of the agreement to separate, George McVay paid his wife $3,000, and his covenant was: “The said George McVay will suffer the said Margaret McVay, at all times henceforth, during her natural life, to live separate and apart from him, and to sojourn, be, and reside in such place and places, and family and families, and with relatives, friends, and to follow and to carry on such trade and business as she, the said Margaret McVay, from time to time, at her will and pleasure (notwithstanding her coverture, and as if she were feme sole and unmarried), shall think fit. And that the said George McVay will and shall not sue, molest, or trouble the said Margaret McVay at any time or times hereafter, for so living separate and apart from him, or any other person or persons whatsoever for receiving, harboring, or entertaining her; nor shall, nor will without the consent of the said Margaret McVay visit her or knowingly come into any house or place where she may dwell or reside, or be; nor shall or will, at any time hereafter, claim or demand any of the rings, jewels, plates, clothes, linen, woolen, household goods, or stock in trade, which the said Margaret
The first contention of the appellant is that the articles of separation are not, on their face, a bar to her right of dower in her husband’s real estate. The learned court below seems to have evaded this question and held that they were a bar, because, at the time she executed them, she understood that she would never be entitled to anything more out of her husband’s estate.
It may be noted that the husband’s covenant does not release any interest that he then had or might subsequently have in real estate belonging to his wife; and she released no dower right by her covenant, which is nothing more than an agreement to sign all proper releases, leases and other deeds of conveyance which her husband might at any time thereafter present to her for her signa
While the articles of separation between the appellant and her husband are not in themselves a bar to her right of dower, the court found the following fact: “At the time of entering into this agreement of separation, the wife was represented by Ernest P. Moore, an attorney, of Moundsville, West Virginia. She was familiar with the estate of her husband and knew of what property it consisted. She further knew and understood pri- or to the execution of the said agreement, and was so advised by her attorney, that all she would ever get out of his estate would be the money and property secured to her by the agreement......With this understanding the contract was executed.” This finding has not been assigned as error, and it is, therefore, binding upon the appellant. But it is urged that it was based upon the testimony of her counsel, which ought not to have been received, in view of the confidential relation which existed between them. No such objection to his testimony was made at the time he was examined, and there is no assignment of error before us complaining of its admission. As to the contention that a reconciliation between the appellant and her husband entitles her to dower, it need only be said that a fact found by the court,
Decree affirmed at appellant’s costs.