Heller v. Heller's Executors
| Decision Date | 05 September 1922 |
| Citation | 3 D.&C. 246 |
| Parties | Heller v. Heller's Executors. |
| Court | Pennsylvania Supreme Court |
1. Plaintiff in 1910, when about thirty-five years old, married the defendants' decedent, aged seventy-five, who died in 1919. A few days prior to the marriage they executed an antenuptial agreement under seal, the stated purpose of which was to make suitable provision for the plaintiff "in lieu of dower rights or thirds in said Frederic P. Heller's estate, in case she should, upon marriage to him, afterwards become his widow." The instrument declared that plaintiff released the husband, his heirs, etc., of and from all claims of dower, and that, "furthermore, the said plaintiff hereby accepts the provisions made for her benefit in lieu of her dower or thirds and all other claims which she may or might or could have in law out of the estate of the said Frederic P. Heller," etc. After the husband's death plaintiff sued his executors for $35,000, on the averment that some time prior to 1910, and at other times, the decedent proposed marriage to her, and by way of consideration for or inducement to her acceptance of his proposal, promised to give her shortly after marriage that sum, to be hers at once and absolutely. The trial resulted in a verdict for plaintiff for $37,100, and the defendants obtained rules for judgment non obstante veredicto and a new trial. Discharging the rule for judgment non obstante veredicto: Held, that the plaintiff's claim on the alleged oral contract dealt with a subject-matter different from that dealt with by the written antenuptial contract, contradicted nothing in the latter, and there was nothing in the one to be reformed by reference to the other; and making the rule for a new trial absolute: Held, that the omission of the court, in the face of specific points submitted by defendants to charge the jury that a parol antenuptial contract could only be established by evidence which was clear, convincing and satisfactory entitled defendants to a new trial.
2. Where a contemporaneous oral agreement is relied upon to qualify a written contract, it is enough to aver and prove that the former was the inducement for executing the latter; but where the written contract is a direct negation of the oral agreement, the latter cannot be established without proof that there has been fraud, accident or mistake in the execution of the former.
Assumpsit. Rules for new trial and judgment n. o. v. C. P. Berks Co., Jan. T., 1921, No. 47.
Randolph Stauffer and H. P. Keiser, for plaintiff.
C. H. Ruhl, for defendants and rules.
The plaintiff, who before her marriage was Bertha J. Wilhelm, is the widow of defendants' decedent. They were married on March 14, 1910, the plaintiff then being about thirty or thirty-five years of age, and the husband about seventy-five. The latter died on Oct. 29, 1919. On March 5, 1910, they had entered into a written and sealed antenuptial agreement, which was carefully prepared by counsel representing plaintiff and decedent, respectively, whose provisions are very detailed and minute, and which was acknowledged and recorded. The purpose of both parties is stated in a preamble to be the making of a suitable provision for the plaintiff "in lieu of dower rights or thirds in said Frederic P. Heller's estate, in case she should, upon marriage to him, afterwards become his widow." And the instrument towards its close declares that the plaintiff, "for herself, her heirs, executors, administrators and assigns, hereby remises, releases, quit-claims and fully and forever discharges the said Frederic P. Heller, his heirs, executors, administrators and assigns, and all his real estate now owned or hereafter to be acquired by him, of and from any and all claims of dower or thirds which she may, might or could have or be entitled to by reason of her marriage with the said Frederic P. Heller," and that, "furthermore, the said (plaintiff) hereby accepts the provisions made . . . for her benefit in lieu of her dower or thirds and all other claims which she may or might or could have in law out of the estate of said Frederic P. Heller, irrespective of the size and extent of the same." The plaintiff contends, however, that there was still another contract between her and defendants' decedent, preceding the written contract and reiterated when the latter was executed. She avers, and has based this action on the averment, that some time prior to Jan. 1, 1910, and at other times, the decedent proposed marriage to her, and by way of consideration for or inducement to her acceptance of his proposal promised to give her shortly after marriage the sum of $35,000, to be hers at once and absolutely. It is this alleged oral contract which the plaintiff seeks to enforce in this action. The trial resulted in a verdict for plaintiff for $37,100, and the defendants obtained these rules. A very careful review of the record has led to the conclusion that the rule for judgment non obstante veredicto cannot, but the rule for a new trial must, be made absolute.
1. The application for judgment non obstante veredicto upon the whole record under the Act of April 22, 1905, P. L. 286, is based upon the theory that plaintiff's claim is predicated upon the written antenuptial contract modified by an alleged contemporaneous oral agreement of defendants' decedent to pay plaintiff $35,000 shortly after marriage, and that the evidence to sustain this allegation does not measure up to the familiar chancery rule defining the kind and degree and quantum of evidence needful in such cases in order to satisfy not only the jury, but as well the independent judgment of the trial judge sitting as a chancellor. It may be noted, in this connection, that the plaintiff's statement avers a promise on Frederic P. Heller's part, both antedating and contemporaneous with the execution of the written antenuptial contract, without, however, averring that the oral promise was omitted from the written contract by fraud, accident or mistake, or that it formed the inducement for her joining in the written contract; and that the theory of a contemporaneous oral promise lacks any evidence sustaining it, the proofs of his promise indicating that it was made, if at all, before that time and as far back as November, 1909. Where a contemporaneous oral agreement is relied upon to qualify a written contract, it is enough to aver and prove that the former was the inducement for executing the latter: Greenawalt v. Kohne, 85 Pa. 369; Bown v. Morange, 108 Pa. 69, 75; Ferguson v. Rafferty, 128 Pa. 337; Coal and Iron Co. v. Willing, 180 Pa. 165, 167-8; Gandy v. Weckerly, 220 Pa. 285; Railroad Co. v. Bromer, 217 Pa. 263, 268-9; Croyle v. L. & I. Co., 233 Pa. 310, 316; Becker v. Building Ass'n, 239 Pa. 590, 593-4; Potter v. Grimm, 248 Pa. 440, 443-6; Noel v. Kessler, 252 Pa. 244, 249-50; Savings Fund and Loan Ass'n v. Fox, 253 Pa. 257, 259-60; Sales Co v. Farrell, 264 Pa. 149, 153; Kerr v. McClure, 266 Pa. 103, 105; Milk Products Co. v. Marcus, 272 Pa. 340, 344. But where the written contract is a direct negation of the oral agreement, the latter cannot be established without proof that there has been fraud, accident or mistake in the execution of the former: Crelier v. Mackey, 243 Pa. 363, 366; Bank v. Tustin, 246 Pa. 151, 153-4; Hamilton v. Fleck, 249 Pa. 607, 613; Neville v. Kretzschmar, 271 Pa. 222, 224-5. On the plaintiff's side, however, it is insisted that the oral promise of $35,000 was, at the suggestion of the decedent and with at least the tacit assent of the plaintiff, designedly excluded from the written and recorded contract in order to conceal it from the decedent's daughters, and was made collaterally to, outside of and in addition to the written antenuptial contract, and that, therefore, the rules stated have no application to it, and the proof of it was not subject to the chancery formula. Whether there was an oral promise such as the plaintiff avers constituted an issue which was bound to be submitted to the jury if there was evidence enough for that purpose. It is asserted on the part of the defendants that there was no evidence of the alleged oral promise except the testimony adduced by plaintiff that the decedent on various occasions, both before and after the execution of the written contract, admitted that he had made the promise, but, in connection with admissions made subsequently to the written contract, declared that he was not bound by the promise because not in writing. Interrogation of the terms of the written contract as we have it discloses that, with the exception of the provisions for joint occupancy of the dwelling and the support and maintenance of the joint household therein, and for rebuilding of the dwelling, etc., if destroyed by fire, the written contract relates practically exclusively to rights and obligations capable of arising upon the death of the decedent; and so, under the familiar rule of ejusdem generis, does the release with which the instrument closes. Neither deals with money claims of the plaintiff against her husband springing from his assumption of personal obligations or promises designed to be made good during the joint lives of the parties, or makes any provision for a money income or gift to her while the decedent lived.
It follows that if this claim is of that character, it deals with a subject-matter different from that dealt with by the written contract, contradicts nothing in the latter, and there is nothing in the one to be reformed by reference to the other; and in such event the case is one, not of an oral contract modifying or conflicting with a written one, but of two separate and independent collateral contracts standing side by side and equally enforceable, similarly to...
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