Moore v. Moore

Decision Date29 January 1942
Docket Number200
Citation25 A.2d 130,344 Pa. 324
PartiesMoore, Appellant, v. Moore
CourtPennsylvania Supreme Court

Argued November 28, 1941

Appeal, No. 200, Jan. T., 1941, from decree of C.P. No. 3 Phila. Co., Sept. T., 1940, No. 2314, in case of Margaret Dryden Moore v. C. Howard Moore. Decree reversed.

Declaratory judgment proceeding.

Petition dismissed, opinion per curiam. Plaintiff appealed.

The decree of the court dismissing the proceeding is reversed at respondent's cost.

George Wharton Pepper, with him J. W. McWilliams, for appellant.

Lemuel B. Schofield, with him W. Bradley Ward, for appellee.




This controversy is between husband and wife. The latter filed a petition asking the court to determine the respective rights of herself and her husband under an antenuptial agreement which both had executed. This the court declined to do on the ground that remedy by declaratory judgment was not invocable. From this ruling the wife appeals.

Both of the parties had been married before. Each was possessed of property, real and personal. On their wedding day, just prior to the ceremony, they executed a formal typewritten agreement, carefully prepared, and an addendum thereto, in the handwriting of the husband.

By the formal sealed agreement prepared by a lawyer, each party releases all rights against the real and personal property of the other, which as surviving spouse he or she might have. The addendum reads as follows: "It is further agreed that the First Party [the husband] shall receive and accept from the estate of the Second Party [the wife] the sum of $10,000.00 dollars in place and instead of all rights, which as surviving husband the First Party might otherwise have either as courtesy in the real property of the Second Party under any statutes now or hereafter in force and effect. The second party agrees that the sum of $10,000.00 dollars shall be fully paid to the first party if he shall survive her as soon after her decease as practicable."

The husband claims that as written, the addendum not only gives him $10,000.00 out of his wife's real estate, if he survives, but gives him such share, as he would take under the intestate law, of her personal property. This means that it wipes out and cancels the release of any such claim in the main agreement which he had simultaneously executed; that the mutual release is thereby nullified as to him, but stands so far as the wife is concerned. If she survives him, she can take none of his property, either real or personal.

It is obvious that the words as written do not accurately express the meaning and purpose of the parties. The word "either" is not connected with any alternative, as it necessarily must be, if it is to have any effect. The word "or" inserted between "party" and "under" would round out the sentence, so the phrase would read "either as courtesy in the real property of the Second Party or under any statutes now or hereafter in force and effect." It would seem that the word "or" had been inadvertently omitted. Where this is apparent, as we think it is, the clearly indicated missing word may be inserted: Oleon v. Rosenbloom & Co., 247 Pa. 250, 93 A. 473; Armstrong v. Standard Ice Co., 129 Pa.Super. 207, 195 A. 171.

If the words remain just as written, respondent can maintain no valid claim to anything beyond the $10,000.00 from the real estate of his wife. Nothing is mentioned in the addendum about her personality. It refers only to his courtesy rights in her real property. The two writings simultaneously executed should be read together and this being done, they harmonize, the release of personal property remains effective and the release of real estate is modified to the extent of $10,000.00. It must be borne in mind that the addendum was written by the respondent, and this being so, construction must be strongly against him: Ebbert v. Phila. Electric Co., 330 Pa. 257, 198 A. 323; Reid v. Sovereign Camp Woodmen of World. 340 Pa. 400, 17 A.2d 890.

The court below did not pass upon the merits of the controversy, but dismissed the proceeding, on the ground that it does not come within the limits of our decisions on what is cognizable under the Declaratory Judgment Act. We think this may be true under certain of our rulings, not necessary now to be reviewed, because the 1935 amendment to the Act widens its scope, and we should give effect to this latest legislative declaration of the public policy on the matter. That amendment (Act of April 25, 1935, P.L. 72, Sec. 1, 12 PS Sec. 836) provides: "Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties, . . . or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present, but the case is not ripe for relief by way of such common law remedy, or extraordinary legal remedy, or where the party asserting the claim, relation, status, right, or privilege and who might bring action thereon, refrains from pursuing any of the last mentioned remedies. . . ."

There can be no question that "an actual controversy exists between contending parties." The husband claims the right to share in the wife's personal estate if she predeceases him; she denies such right. She is in the position of not being able by will to dispose of her personality with certainty, because of her husband's claim to a large part of it. We are "satisfied" that he "asserts a relation, status, right or privilege in which he has a concrete interest" which is challenged and denied by his wife, who "asserts a concrete interest therein" and we are "satisfied" also "that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding." No statute provides a "special" form of remedy for this "specific type of case." The fact that the controversy is susceptible of relief through some other remedy, does not debar declaratory judgment relief where, as here, the case is not ripe for relief by way of such other remedy, as it will not be until the wife dies. The Superior Court in Grambo v. Southside Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925, has sanctioned a wider use of the declaratory judgment than theretofore prevailed. It has also done so in Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586. We conclude that the present controversy is one within the scope of a declaratory judgment proceeding, and that the court below was in error in deciding to the contrary.

In her petition, after setting forth the agreement and addendum, the wife states, that at the time her husband added the addendum, he orally represented to her, that by the execution thereof, he would be entitled to receive, if he survived her, only the sum of $10,000.00 from her real and personal estate, and that she executed the addendum in reliance upon this representation.

The husband, in his answer, sets up that a sister of petitioner, by reason of superior intellect and strength of personality, exercised great influence over her, and desiring to deprive him of his rights in her estate, and concerned in respect to his wife's intemperate and improvident manner of life, caused the agreement to be prepared, and insisted that his wife cause him to execute the agreement before marrying him. He avers that he did not agree with his wife, verbally or in writing, to release her estate, if she predeceased him, but that he refused to enter into such an agreement, although he was urged to do so by her at the urgent insistence of the sister. He states, that just prior to the marriage ceremony, he and his wife orally agreed that, if he survived her, he should be entitled to receive from her real estate the sum of $10,000.00, and that his right to claim his share of her personal estate should not be affected. He admits that he wrote the addendum; he says at her instance. (It is noteworthy that he did not put in it anything relative to his right in her personal estate.) He denies that he orally represented to his wife that the addendum gave him no rights in her personal estate and that she executed it upon such a representation.

It is contended on behalf of the husband that, if our opinion shall be that the proceeding as brought is proper, we should send the case back for hearing of evidence as to the oral understanding and agreement. Such evidence would be inadmissible, however, under the parol evidence rule of Gianni v. Russel, 281 Pa. 320, 126 A. 791, and the cases that have followed it.

It is further argued by him, that what his wife is seeking is reformation of the agreement. Not so, what is sought is construction of it. Reformation is not required.

We therefore, decide that however the addendum be viewed, whether...

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