Kaiser's Estate
| Decision Date | 26 July 1900 |
| Docket Number | 22-1900 |
| Citation | 14 Pa.Super. 155 |
| Parties | Kaiser's Estate |
| Court | Pennsylvania Superior Court |
Argued February 15, 1900
Appeal by Catharine Kaiser, widow, in the matter of the estate of George J. Kaiser, deceased, from decree of O. C. Lycoming County-1899, No. 24, refusing writ of partition.
Petition for writ of partition. Before Mayer, P. J., of the 25th judicial district, specially presiding.
The facts sufficiently appear in the opinion of the court.
The court below discharged the rule and refused the prayer of the petition. Catharine Kaiser, widow, appealed.
Error assigned was in making the order and decree discharging the rule and refusing the prayer of the petition.
Henry C. McCormick, with him W. W. Champion and Seth T. McCormick for appellant. -- Can a married woman, by the mere signing of an agreement of separation, without a separate acknowledgment, release her dower interest in her husband's lands? Act of February 24, 1770, 1 Sm. L. 307; Kirk v. Dean, 2 Binney, 341.
This case was followed by Thompson v. Morrow, 5 S. & R 289, and Barnet v. Barnet, 15 S. & R. 72, and in a large number of cases since that time.
That the requirements of this act as to the separate examination of the wife must be strictly pursued, and must so appear on the magistrate's certificate, we cite the cases of Graham v. Long, 65 Pa. 383, and Enterprise Co v. Sheedy, 103 Pa. 492.
There is no such thing as estoppel of a married woman, by receipt of the consideration, as was said by Glidden v. Strupler, 52 Pa. 400.
The court below attempted to make this case an exception to the general rule under the act of 1770, upon the doctrine that articles of separation between husband and wife should be liberally construed, and cited in support of that position a number of cases, among which might be mentioned Hutton v. Hutton, 3 Pa. 100, Dillinger's Appeal, 35 Pa. 357, and Schmitt's Estate, 5 Pa. C. C. R., 183.
The question here, however, is an entirely different one. Titles are made under the act of 1770. The cases under that act have become rules of property in Pennsylvania, and there is not a case in which the courts of this state have said that, so far as releasing dower is concerned, an agreement of separation stands upon any different grounds than any other deed by which a married woman attempts to convey her property. On the contrary, there is one case in Pennsylvania which practically agrees with our contention in this case. We refer to the case of Walsh v. Kelly, 34 Pa. 84.
J. F: Strieby, for appellees. -- In all the cases of agreements of separation between husband and wife, passed upon by the courts, the intention of the parties alone was considered and no regard was paid to the form or technical execution of the contract: Walsh v. Kelly, 34 Pa. 84.
In Scott's Est., 147 Pa. 102, the whole contention was over the intention of the parties as expressed in the agreement of separation.
From these observations it is clear that the courts have not sustained deeds of separation between husbands and wives, because they were executed in conformity with the provisions of the act of 1770, but upon the equitable grounds that inasmuch as their covenants bind the husband they must be held to bind the wife, and because the courts will not lend their aid to assist the wife in violating an agreement in making a claim that is against equity and conscience for her to set up.
Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
George J. Kaiser and Catharine, his wife, in the year 1893, entered into articles of separation, reciting that for various reasons they agreed to separate and thereafter to live apart, the same as though they had never been married. The agreement contained a covenant upon the part of Kaiser to pay his wife the sum of $ 500, and to release all interest in any and all personal property which belonged to her at that time, or that she might become possessed of in the future, and he thereby released and relinquished any and all rights that he became possessed of by the marriage in any real estate that she was owner of, or possessed of, or that she might become possessed of in any way or manner in the future. Upon her part, the wife agreed to leave the residence of her husband at once, and to forever remain away, and that she would in no way annoy him in consideration of the marriage; " and further, that she hereby releases and by these covenants has released all rights that she may have become possessed of by the marriage, in any property, money or other valuable thing, either real or personal, that he may be possessed of at this time, or that he may become possessed of in the future, the same as though the marriage had never taken place." The agreement was signed by the husband and the wife executed it by making her mark. The acknowledgment by the parties was in the following form: The acknowledgment did not conform with any of the requirements of the Act of February 24, 1770, 1 Sm. L. 307. Kaiser paid the $ 500 to his wife and she took possession of her own personal property, in accordance with the terms of their agreement, immediately withdrew from his home, and they remained separated until the death of Kaiser, on January 5, 1899. The appellant, on May 2, 1899, presented her petition, in due form, setting forth her marriage to the decedent, the death of her husband, seized of certain lands, and alleged that she was entitled to dower out of said lands. The prayer of the petition was that the court award an inquest to make partition of the premises, according to law. The appellees filed an answer, setting forth the agreement of separation and that the appellant's right of dower was barred thereby. The appellant filed a replication, admitting the facts set forth in the answer, but denying the conclusion of law, and prayed the court for judgment that said writ of partition issue. The learned court below discharged the rule on appellees to show cause why a writ of partition should not issue, and refused the prayer of the petitioner.
Where an agreement of this character is executed in due form, and contemplates an actual, immediate and continuing separation and is actually carried into effect by both parties, it will, if based upon a good consideration and reasonable in its terms, be as valid and binding upon the wife as upon the husband. At law no contract can be made between husband and wife without the intervention of trustees, for she is considered as being under the control of her husband and incapable of contracting with him. But in equity where the contract is reasonable, and where it has been consummated, it will be upheld. This being the case, the agreement may, in Pennsylvania, be asserted to defeat an action at law instituted in violation of its terms: Lehr v. Beaver, 8 W. & S. 102; Hutton v. Hutton's Admr., 3 Pa. 100; Dillinger's Appeal, 35 Pa. 357; Commonwealth v. Richards, 131 Pa. 209. In all the foregoing cases the claim asserted by the wife was for a distributive share of personal property, or the enforcement of the personal liability of the husband. In Hitner's Appeal, 54 Pa. 110, the question involved was the wife's right of dower, but it does not appear in the report of the case whether the acknowledgment of the wife was taken in the form required by the act of 1770 or not. The only question raised in that case and considered by the court was, whether the evidence was sufficient to establish a reconciliation by the parties, subsequent to their separation. In the light of these authorities, there can be no question that as to any claim of the appellant upon the...
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