Ray's Estate

• Decision Date: 27 June 1931
• Docket Number: 10
• Citation: 304 Pa. 421,156 A. 64
• Parties: Ray's Estate
• Court: Pennsylvania Supreme Court

156 A. 64

304 Pa. 421

Ray's Estate

No. 10

Supreme Court of Pennsylvania

June 27, 1931

Argued May 27, 1931

Appeal, No. 10, May T., 1931, by Laura Virginia M. Ray, from decree of O.C. Dauphin Co., dismissing exceptions to auditor's report striking off widow's election against will, in estate of William Stanley Ray, deceased. Affirmed.

Exceptions to report of auditor, Samuel Handler, Esq. Before FOX, J.

The opinion of the Supreme Court states the facts.

Exceptions dismissed. Laura Virginia M. Ray, widow, appealed.

Error assigned, inter alia, was decree, quoting record.

The decree of the court below is affirmed. Costs to be paid by appellant.

Spencer G. Nauman, of Nauman & Smith, for appellant. -- The copy of the alleged separation agreement was not admissible in evidence: Strause v. Braunreuter, 14 Pa.Super. 125; Cottom v. Wiley, 39 Pa.Super. 507; Carland &amp Bierne v. Cunningham, 37 Pa. 228; Milliken v Barr, 7 Pa. 23; Moore v. Everitt, 20 Pa.Super. 13; Buehler v. Fashion Plate Co., 269 Pa. 428.

The separation agreement was abrogated by the subsequent reconciliation of the parties: Henkel's Est., 59 Pa.Super. 633; Penn v. Preston, 2 Rawle 13.

The language of the separation agreement construed in the light of the attending circumstances shows that it was only intended to take effect whilst the separation lasted.

The widow was a competent witness under the provisions of the Act of June 11, 1891, P.L. 287: Proper v. Campbell, 15 Pa.Super. 153; Aaron v. Smith, 90 Pa.Super. 565.

Paul G. Smith, for appellee. -- The "separation agreement" was properly before the court: Edwards v. Tracey, 62 Pa. 374; Reed, Crane & Co. v. Kremer & Co., 111 Pa. 482; Greenawalt v. McEnelley, 85 Pa. 352; Warren, etc., Trust Co. v. Foley, 294 Pa. 176; Fisher v. King, 153 Pa. 3; Bauer v. Hill, 267 Pa. 559; Shapiro v. Melarkey, 278 Pa. 78; Graff v. R.R., 31 Pa. 489; Strause v. Braunreuter, 14 Pa.Super. 125.

The deed in question was a postnuptial settlement of property rights and in full force and effect on the death of the husband: Miller v. Miller, 284 Pa. 414; Fennell's Est., 207 Pa. 309; Dillinger's App., 35 Pa. 357; Scott's Est., 147 Pa. 102; Singer's Est., 233 Pa. 55; Haendler's Est., 81 Pa.Super. 168.

There was no competent evidence of an intentional cancellation of the "separation agreement": Cooke v. Doron, 215 Pa. 393; Munson v. Crookston, 219 Pa. 419; Phillips's Est., 271 Pa. 129; Bowman's Est., 301 Pa. 337.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE MAXEY:

This is an appeal from an order of the court below dismissing exceptions to an auditor's report striking off a widow's election to take against the will of her husband, W. S. Ray, who died leaving an estate of $127,732.79. There were four exceptions. The first three were not pressed, and the fourth relates to the basic question in the case. It excepts to this finding of fact: "The 'Separation Agreement' was in no manner dependent upon the continuance of the separation." The separation agreement referred to was entered into by the husband and wife on the 29th day of September, 1928, while they were estranged and living apart. In this agreement the wife accepted the terms of an irrevocable trust, in which the husband set apart eighty-five thousand dollars chiefly for the benefit of herself and daughter, in complete release of all claims against the husband as though the marriage relation had never existed. One week later the parties resumed cohabitation and occupied the same apartment until May, 1929. The monthly income under the trust agreement continued though for four months Ray contributed to the maintenance of his wife and their daughter. The wife claims that this reconciliation legally abrogated the agreement and restored her statutory rights in the estate of her husband. The court below negatived this claim.

W. S. Ray was married twice. He had three children by his first wife and one child, Virginia Ray, by his second wife. Ray died, testate, on July 18, 1929, leaving to survive him the second wife and his four children. His widow elected to take against his will. A testamentary trustee under the will, acting for the three children of Ray's first wife, filed a petition to strike off the widow's election to take against the will. An answer was filed by the widow. She also filed an inventory and appraisement in the office of the register of wills. Exceptions were filed to this by the testamentary trustee and by the three children of the first wife who were named as beneficiaries under the trust created in his will. The same issue was presented by these exceptions as by the answer filed to the petition to strike off the widow's election. This issue was referred to an auditor, who after hearing made findings of fact and reported that the separation agreement was in full force and effect at the time of Ray's death and that the widow was precluded by that agreement from taking against the will and codicil of her husband and that she was not therefore entitled to any part of the balance of the account in the Mechanics Trust Company, executor of the will of W. S. Ray, deceased, and her claim of one-third of the balance in the account was disallowed. The court below confirmed the report of the auditor.

The fundamental question in this case is whether the agreement between the husband and wife of September 29, 1928, was a postnuptial final and definite settlement of their respective rights in Ray's property or merely a separation agreement which would ipso facto terminate by the subsequent reconciliation of the parties. The agreement is captioned "Separation Agreement," though it declares that Ray and his wife were already "living separate and apart from each other; and it is the desire of both parties to finally and for all time settle and determine their property rights, or rights of support and maintenance, of the party of the second part [the wife] by the party of the first part [the husband], all dower rights or rights in lieu thereof, together with any and all other existing rights between the said parties, growing out of the marriage relation." The agreement further provides that the husband should pay to the Mechanics Trust Company, Trustee, prior to the execution and delivery of the agreement, the sum of eighty-five thousand dollars in cash, to be held by said company under deed of trust for the use and benefit of the wife and her daughter, Virginia Ray. This provision in the agreement was fully executed. The agreement further provides that the wife, in consideration of the payment of said sum of money, "accepts the terms of the said trust agreement, in full and complete settlement and release of all claims and demands of every kind or nature, against the husband, including all liability now or at any time hereafter existing or accruing, either on account of support, maintenance, alimony, temporary or permanent, dower or rights in lieu thereof, incident to the marriage relation, intending thereby to relieve the husband entirely from all personal claims and demands, and from any that may hereafter attach, arising in any manner from the relation of husband and wife, and from all claims or interest whatsoever in any property, real, personal or mixed, which the said husband may now own or may at any time hereafter hold or acquire any interest whatsoever in, either by devise, bequest, purchase or otherwise; it being understood that this settlement is a total and complete release of the said husband by the wife, of all matters and charges whatsoever, and that the said wife shall, after this settlement, require nothing whatever of the said husband, as though the marriage relation had never existed between them." The reading of this agreement and the fact that the husband paid the eighty-five thousand dollars therein stipulated to be paid lead to but one conclusion, viz., that the agreement accomplishes its avowed purpose "to finally and for all time settle and determine their property rights" in the personal property the title to which was held by Ray. This agreement cannot be construed as anything other than a postnuptial settlement of property rights between the husband and wife. A separation agreement ordinarily provides for a separation and for the wife's support during the separation. Its provisions are usually executory in character. The subsequent cohabitation of the parties is evidence of an intention to abandon the agreement. As the auditor well said: "It is not subsequent cohabitation alone which avoids such agreements, but the intentional renunciation of them, which the resumption of marital relations sometimes evidences. So far as subsequent cohabitation establishes such an intention and so far only does it have the effect of avoiding the contract. Whether it does so properly is a matter of intention to be ascertained from the conduct and circumstances as a question of fact: Daniels v. Benedict, 38 C.C.A. 592, 97 F. 367; Dennis v. Perkins, 88 P. 165." The reconciliation of the parties and their living together as husband and wife subsequent to a mere separation agreement make the inference of intention to renounce the agreement of separation inevitable, for their action then becomes inconsistent with it.

Henkel's Est., 59 Pa.Super. 633, held that a reconciliation between a husband and wife abrogates the covenants of an agreement of separation so far as the agreement is not executed unless there is an agreement that it shall not be abrogated, and that if the covenants releasing the interest of each in the estate of the other are executory so that effect cannot be given to them until the death of either the husband or wife, a reconciliation before such death occurs restores to the parties their marital...