59 Pa. Super. 393 | Pa. Super. Ct. | 1915
Opinion by
The agreement between the parties, after reciting that unhappy differences had arisen between them, provides for their living separate and apart, and for the payment of $3.00 per week to the wife in lieu of all claims and demands which she may have against her husband; the separation to continue during their respective lives. To secure the payment of the weekly sum, the husband assigned as collateral security a legacy due him in the estate of Simon Muhr, deceased, and the wife’s claim as assignee of the legacy, brings the question as to the scope of the agreement before us. Her claim is resisted, the reason alleged being that subsequent to the separation, the husband procured an absolute, divorce from her on the ground of her adultery. Did the decree of divorce terminate the agreement? The rule appears to be well established that “the law will not imply a termination of covenants relating to property or making provision for the wife, from the misconduct of the party
Our attention has been called to two Pennsylvania cases: Blaker v. Cooper, 7 S. & R. 500, and McGrath v. Penna. Co. for Ins. on Lives, etc., 8 Phila. 113. In the former case, which involved the construction of an agreement of separation, Tilghman, C. J., states, “the parties may make what agreement they please and the only question is, what is the agreement. He (the husband) was to be indemnified from any further expense and from any claim of dower — so that the husband received a quid pro quo. He retains all the benefit of the agreement, notwithstanding the subsequent divorce and marriage of his wife.” There is no doubt that a man may agree to pay an annuity to his wife during her life whether she remains his wife or obtains a divorce and marries again. In McGrath v. Penna. Co., supra, in an opinion by Thompson, C. J., this appears, “But it is argued by the solicitor of the company, that possibly, the divorce and marriage of Mrs. Cooper, has a bearing on the duration, or rather continuity of this settlement. As already said, no such limitation or condition appears in the instrument, and as there was a sufficient consideration for the settlement when made, we see nothing that in the least affects its bearing force. This principle is clearly asserted in Hill on Trustees, p. 428. The text is, that ‘where the wife is entitled to a provision by virtue of a contract, whether contained in marriage articles or in a covenant or deed of settlement, it is
The appellant, however, calls attention to the words employed by Justice Tilghman in Blaker v. Cooper above referred to, “It does not appear on the record, at whose instance this divorce was obtained, nor what was the cause of it. It may be, that it was caused by the husband’s misconduct, and if so, it would be a bad reason for getting rid of the annuity. I will not presume that it was occasioned by the misconduct of the wife, because it is not shown.” We do not think these words were employed to make an exception to the general rule. They may be regarded as merely fortifying the conclusion reached. It was a mere statement that facts that might be pressed in argument for the avoidance of such an agreement were not present in that case. The decision was founded upon the construction of the contract. The expression above quoted was a mere dictum.
Whatever hardship there may seem to be in holding the husband to the cpntract after a divorce obtained by reason of the adultery of the wife, the fact nevertheless remains that if he desired to make the chastity of his wife a condition to the continuance of the agreement he might, as is said in some of the cases, have inserted a dum casta clause. We are not called upon to change the contract of the parties where they make agreements which are for a valuable consideration, with a full understanding of the subject-matter, however circumstances may change or conditions vary. The wife when she agreed to separate from her husband gave up her rights as to maintenance and any share of his estate (Scott’s Est. (No. 2), 147 Pa. 102) for which the husband in the agreement compensated her. He re
The argument advanced that under the decree obtained in the divorce case, in the language of the act of March 13, 1815, sec. 8, “all the duties, rights and claims accruing to either of said parties in pursuance of said marriage shall cease and determine;” and that therefore the agreement of separation is no longer binding upon the parties, is not tenable. The act of assembly refers to such duties as are put upon the parties by reason of the marriage relation, not by reason of an agreement made by them. If in a deed of settlement the husband had conveyed land to his wife and after-wards they would have become divorced, it certainly could not be argued that he would be entitled to a reconveyance of the land to him. Neither does the act divest rights obtained by her under an agreement of separation.
The only other matter we need consider is the question as to whether the agreement was valid without the intervention of a trustee and because the parties were living together at the time it was made. It was stated in Rodenbaugh v. Rodenbaugh, 17 Pa. Superior Ct. 619, that a husband" and wife may make a valid agreement for separation without the intervention of a trustee where the separation is inevitable and immediate and that a wife’s rights under such contract may be enforced in her own name. There is no doubt in this
All the assignments of error are overruled and the judgment of the court is affirmed.