34 Pa. 84 | Pa. | 1859
The opinion of the court was delivered by
This was an action of dower, by a widow, against the alienee of her deceased husband; and the defence set up was an agreement for a separation, alleged to be signed by the husband and wife on the 8th April 1827, and which, it was asserted, was a bar to the recovery. John Kelly and Elizabeth Henry were married on the 1st January 1826, and had one child. It appeared that quarrels ensued between them, which resulted in his beating her, and finally kicking her out of the house. She never lived with him afterwards, but having “made information for assault and battery” against her husband, before Michael Reed, Esq., he testified, on the trial, that they appeared before him, “ and compromised — signed an agreement, and gave each a copy.”
If this agreement had been produced, its validity, interpretation, and construction would have been for the court and not for the jury; and as in this instance the instrument was lost and could not be produced, the form and contents as proved by Squire Reed Were equally within the province of the court.
The court saw that it was simply an agreement between man and wife, not under seal, nor acknowledged either by the husband, or by the wife separately, a form positively required by law where it is intended to dispose either of the wife’s own estate or her dower in that of her husband. The language was vague and uncertain, and there is not a word in it which can be fairly construed into a relinquishment of dower. The court therefore construed this instrument, and held that it did not bar the dower; and in this we see no error.
There appears no real consideration passing from the husband to the wife, and she got nothing from him except the child which she raised.
Judgment affirmed.