1 Pa. Super. 345 | Pa. Super. Ct. | 1896
Opinion by
Robert Odenwelder, a widower with three children, aged forty-two years, wed Sabina Messinger, a widow with two children, September 22, 1877. The conjugal relation thus established continued for more than seventeen years, when, upon December 3, 1894, it was terminated by the death of the husband. Prior to the date of his death, two of the children of the first marriage had died, leaving Mary Richards, the wife of Elijah J. Richards, the appellant in this ease, as the only surviving child. The decedent was also' survived by his wife and the child of his daughter Elizabeth who had been intermarried with Edward W. Cole, and died April 9, 1886. There was no issue of the second marriage.
On the 25th day of September, 1894, Robert Odenwelder
On the 10th day of December, 1894, four days after the funeral of the decedent, Elijah J. Richards, his wife Mary and his attorney met at the house of Mrs. Odenwelder, Mrs. Richards having preceded the others. The will was opened and at that time, before its probate, Mr. Richards, the executor named therein, proposed to pay to Mrs. Odenwelder, the widow, $500, on account of the legacy therein bequeathed to her. The widow, after making some objection, finally yielded and he produced a receipt previously prepared, which she signed, which is as follows :
“Easton, Pa., December 10th, 1894.
“ Received from Elijah J. Richards, Executor of Robert Odenwelder, Five Hundred Dollars, being in part payment of legacy of One Thousand Dollars bequeathed me by the will of said Robert Odenwelder, accepted by me in accordance with the terms of said will and the terms of agreement of September 25th, 1894, between Robert Odenwelder, Mary Richards and myself. “$500.00. Sabina Odenwelder.”
“ Sir :—You have paid me or deposited for me the sum of Five Hundred Dollars and, at your request, I have signed a receipt, without knowing its meaning or effect. I am now informed that you claim its receipt by me affects my right to the sum of Three Hundred Dollars, as the widow of my late husband, as well as my right of choice to take under the intestate laws of this State, instead of under my husband’s will. I have, therefore, placed in the hands of my attorney, F. H. Lehr, my check on the Northampton County National Bank for the Five Hundred Dollars there deposited by you for me, to be delivered to you, upon the return of said receipt to him or to me. At the same time I ask to have appraised to me the sum of Three Hundred Dollars allowed to me as widow under the laws of Pennsylvania.”
This notice was served upon the executor prior to the appraisement of the personal property. It was disregarded by him; no property was set apart to the widow, as requested; and, after a subsequent notice,—specifying certain personal property which she elected to take at its appraised value as part of her claim for $300 and that the balance of the amount of $300 would be selected when she had an opportunity of seeing the balance of the inventory; to which the executor on the 26th of December, 1894, replied that according to the terms “ of your husband’s will and your agreement of September 25th last, I am not permitted to allow your claim of the exemption of Three Hundred Dollars etc,—” she presented her petition December 27, 1894, to the orphans’ court, praying for a decree, requiring the executor to appraise to her her “ statutory exemption.” On the same day a citation was awarded upon the executor to show cause why he should not make the appraisement demanded and why said decree should not be made. This citation was answered by the executor, a replication was filed, an examiner was appointed to take testimony, and the court, after argument, on the 16th of July, 1895, granted the petition in an opinion duly filed. From this decree the executor has appealed to this court.
It is alleged by the appellant, however, that the widow is precluded from making this claim by virtue of an agreement in writing, under seal, made upon the 25th day of September, 1894, on the same day although subsequently to the making of the will of the decedent, in and by which she agreed to and with her husband and Mary A. Richards, in consideration of the making of the said will and of other covenants in the said agreement contained, as follows, to wit: “ to receive and accept said bequests and devises in lieu of her dower at common law in the estate of her said husband and her share, portion or interest in the same, under the intestate and exemption laws of the Commonwealth of Pennsylvania or elsewhere.” The agreement further provides as follows: “ And the said Sabina doth remise, release and forever quit-claim unto the said Robert Oden welder and said Mary Richards, his and her heirs, executors and assigns, and all other persons whomsoever whatever their status or interest in said estate under the will of said Robert Odenwelder may be, all and all manner of dower and right and title of dower and other interest, right or title whatsoever at common law or under the intestate and exemption laws of Pennsylvania or elsewhere, which the said Sabina- Inay now have or might, should or of right ought to have or claim, as the wife or widow of said Robert, of, in, to or out of his estate, excepting such right or interest as is hereby agreed by said Robert to be devised and bequeathed to said Sabina by his
If the widow is bound by the terms of this agreement made in her husband’s lifetime, she cannot, of course, prevail in her claim to have her statutory right of $300 set apart to her out of the personal property of her husband, under the provisions of the fifth section of the act of the 14th of April, 1851.
The consideration of this question opens a wide and interesting field of inquiry: First. Has a married woman during her coverture the power to make a valid agreement with her husband, by which she can voluntarily release her statutory right to $300 to be set apart to her out of his estate after his death? In other words, was the agreement of the 25th of September, 1894, hereinbefore recited, void in law ? And second. Even if it were not void, should not equity interfere to prevent its enforcement, in view of all the circumstances of the case?
It is conceded that, if the power to make the agreement above referred to exists, it is conferred by the act of the 8th of June, 1893, entitled “ An act relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, and to make a last will and enabling them to sue and to testify against each other in certain cases.”
In our view of the case, it is not necessary for us to discuss the first proposition above named, namely, as to whether or not the agreement of the 25th of September, 1894, is actually void, inasmuch as we are clearly of the opinion that it should be voided in equity. The question as to whether or no,t the act of the 8th of June, 1893, confers upon a married woman during her coverture the authority to barter and sell for any consideration the personal privilege given to her under the act of the 14th of April, 1851, is a question of very great importance to the community and should be carefully considered and decided when a proper case arises. We do not consider it now, for the
The second proposition,namely, “Should equity interfere to prevent the enforcement of the agreement referred to, in view of all the circumstances of the case?” embraces the second and third assignments of error. A great mass of testimony bearing upon this question has been taken and submitted to us, which has been very carefully considered. The attorney of the husband'or of his son-in-law and an officer to take the acknowledgment appeared at Oden welder’s house without notice to the wife, who admits them under the impression that one of them is the pastor of her husband, who comes to visit him in the capacity of spiritual adviser. She has no knowledge of the object of the-visit, until they and the husband make their appearance in the-room where she is entertaining callers. A paper previously prepared is read to the wife which she declines to sign. A suggested change is made by one of the visitors who does not in any way represent the wife. She is there without any adviser. The husband is sick and irritable, the wife nervous and apprehensive. There can be no question whatever that the condition of the husband was used by those who were interested in having the paper signed to influence the wife in assenting to and signing it. The weight of the testimony strongly indicates that, although the paper was read in the hearing of the wife, it was not explained to her in such a way as to enable her to understand it. There was no examination separate and apart from her husband. The weight of the testimony is overwhelming that he remained in the room near to her person whilst it was executed and the acknowledgment taken by the officer. Leaving the testimony of the widow and those most directly interested in the subject out of view, the testimony of William Odenwelder, who was entirely disinterested and went there as the friend of Robert Odenwelder, bears upon this question. When the subject of the signing of the agreement was under consideration, he says, in his examination:
Q. What did Robert say ? A. Robert came and set right alongside of me. “ William,” he says, “ here I have something on my mind that I want to get rid of; something that I want to have fixed. ”
Q. Did he talk loud enough for all in the room to hear him?
Leaving out of view what is alleged to have been said as to the testator’s intention to transfer all his personal property, in case his wife refused to sign the agreement,-it is very evident that she was influenced rather by her desire to secure the peace of mind and the possible restoration to' health of her husband than by sordid considerations. This she herself distinctly asserts in her testimony. There is no question whatever as to the positive disinclination of Mrs. Odenwelder to sign the agreement. That disinclination was in some way overcome,—not perhaps under duress per minas. There is a duress, however, quite as strong and quite as effective which will influence any good, womanly wife, and seems to have been the compelling cause in this- case—duress per amorem. Did Mrs. Odenwelder. understand the contents of the paper which she signed ? We cannot believe, from the testimony, that at the time of the making of the agreement, she understood that she was surrendering her right to have $300 from the estate of her deceased husband set out to her, after his death. This is the only part of the agreement with which we have to do, and we confine our inquiry entirely to it. William Odenwelder, a man of ordinary, if not more than ordinary, intelligence, did not so understand it from the reading of the agreement at the time, nor-did he understand it from the reading of the agreement in his-hearing at the time at which his testimony was taken. Although' the terms “ widow’s exemption” and “rights under the exemption law ” have crept into our legal parlance, the original act does not purport, to be in terms an exemption law. It provides' that “ hereafter the widow or the children of any decedent dying within this commonwealth testate or intestate may re
In the case of Shea’s Appeal, 121 Pa. 802, the whole question of the doctrine of uberrima fides is exhaustively discussed. In the opinion delivered by Mr. Justice Green, page 318, he says: This “ is not the case of a contract between strangers or of persons dealing at arms’ length. It is not even the case of a contract between persons in a confidential relation but which, having been executed, carries with it the rights of one of the parties, so that relief can only be obtained by an affirmative and adverse proceeding and decree setting it aside on the ground of actual fraud. The right of the plaintiff to her assignment of dower is complete, without any reference to this contract. It comes into the case only as a defense against her claim, and the defendants must establish it, not only as a factum but as a bar to her claim, not assailable either by legal or equitable principles. Viewed in this light, it must endure successfully the test of those principles or it must fail. How is it in this respect? It is a contract between two persons, a man and a woman about to be married, and it relates to the future rights of the woman in the property of her husband. It is something to the purpose, though not of vital importance, that there was proof that two days before the marriage the plaintiff refused to sign such an agreement. True, she might have changed her mind and signed it nevertheless, but the duty to prove this and to prove it affirmatively and. by satisfactory testimony, rests upon the defendants, and on the face of this record there is no such proof.
“ There is, it is true, the legal inference of consent, which in all ordinary cases arises from mere execution. But in this-class of cases that inference does not arise. The relation is
In the view which we’ have taken of this case and discussed it, it is hardly necessary to refer to the question of the competency of the widow as a witness. It is not raised by the assignments of error. Objection was made to her competency before the auditor and her testimony was evidently considered by the court below. We have scarcely more than referred to her testimony, preferring to base our conclusion upon what was entirely undisputed in the case. We are of opinion, however, that as to anything which occurred in the presence of the son-in-law, Richards, or his wife or of Messrs. ¡-Serfass and Fenicle, or any of them, concerning which they testified, she was a competent witness under the provisions of the act of June 11, 1891, P. L. 287, and this practically covered all that was essential in her testimony.
We have not referred to the argument of the appellant in error that, even if the agreement should not be enforced as to Robert Odenwelder, it is good as between the widow and Mrs.
This sufficiently disposes of all the questions involved in the case; and, for the reasons herein stated as well as for others which might be urged, we are of the opinion that the decree of the court below should be and it is hereby affirmed; the costs of the appeal to be paid by the appellant.