Scott's Estate , 147 Pa. 102 ( 1892 )

Opinion by

Mb. Chief Justice Paxson,

This case arises upon the distribution of the estate of John Scott, late of the county of Allegheny. The auditing judge gave one third of the fund to Olivia R. Scott, widow of the decedent. Upon exceptions filed, the court below sustained the auditing judge, and these appeals were entered by and on behalf of Mr. Scott’s children.

It appears that many years ago unhappy differences had arisen between Mr. Scott and his wife, resulting, in the year 1886, in articles of separation. The agreement is dated May 18th of that year, and after reciting the differences referred to, and the fact that proceedings for a divorce a mensa et t-horo had been commenced, provides:

“ That they, the said John Scott and Olivia R., his wife, shall henceforth and during the period of their lives continue to live separate and apart from each other, as if divorced; and that she, the said Olivia R., shall have, enjoy, and control her separate estate and property as fully and absolutely as if she were sole and unmarried ; and that she shall in like manner, enjoy, control, and dispose of all [her] property and estate, including the fruits of her own industry and labor, together with all other property which she may in any manner acquire in the future, at her own will and pleasure, and without any interference therein by her said husband.”

It was then further provided that the said John Scott should settle upon her an annuity of $1,000, payable quarterly, and release all his interest in her own real estate, situate in the Nineteenth ward of the city of Pittsburgh. These stipulations appear to have been complied with. The agreement then continues :

“ In consideration of the premises, the said Olivia R. Scott and Josephine Rodgers, her next friend, do hereby release and forever discharge the said John Scott, his executors, administrators, etc., from all liability to said Olivia R. Scott other than that assumed by him in this contract; and they also release, acquit, and discharge the said John Scott from all duties, liabilities, and obligations of every kind whatsoever, which otherwise she, the said Olivia R. Scott, might or could claim under or by virtue of the marriage relation between her and the said John Scott; and they, the said parties of the second part, agree upon their part that they shall keep, observe, and maintain this contract in good faith and without breach or default.”

We learn from the opinion of the learned judge below that “ when the agreement of separation was entered into between John Scott, the decedent, and his wife, Olivia R. Scott, his financial condition was such that, if his creditors had pushed him, it is highly probable that all his property would have been exhausted in the payment of his debts. She then owned the homestead of five acres and mansion house on Larimer Avenue, Pittsburgh, valued at $50,000, $45,000 of dividend-paying stocks, and had $1,450 in cash, all of which had been given to her by him after their marriage.” Under these circumstances, we quite agree with the learned judge below that the provision for Mrs. Scott was reasonable, even treating the agreement as a release by her of all interest in his estate after his death.

It appears that, by a fortunate speculation and subsequent rise in values, the estate of Mr. Scott was largely increased, and at the time of his death amounted to about $350,000. It is also undisputed that Mr. Scott and his wife lived apart to the time of his death. The validity of the agreement is not denied. It is settled law in this state that an agreement between husband and wife to live separate and apart, if based upon a good consideration, and reasonable in its terms, and actually carried into effect by both parties, will be as valid and binding upon the wife as upon the husband: Hutton v. Hutton, 3 Pa. 100; Dillinger’s Ap., 35 Pa. 357; Hitner’s Ap., 54 Pa. 110; Speidel’s Ap., 107 Pa. 18; Commonwealth v. Richards, 131 Pa. 209. The validity of the agreement not being in dispute, it remains to consider its legal effect. Whatever may be its phraseology, it is not to be supposed for a moment that Mr. Scott intended to make a settlement of a considerable portion of his estate upon his wife, and at the same time allow her a full share of the balance in case of his death. No matter where the fault may lie in cases of separation, the husband does not usually regard his wife as a saint, and make a provision for her in excess of what he would probably do for a wife who retained his affection and respect; and, so far as the wife is concerned in such cases, it is safe to assume that she intended to get all she could. But what the respective parties intended is not of much moment, unless such intent be properly expressed, and carried out bjr apt words, in the agreement of separation itself.

The release above cited is very broad in its terms. It releases the said Scott, his heirs, executors, administrators, etc., “from all liability to said Olivia R. Scott other than that assumed by him in this contract.” And, further: “They also release, acquit, and discharge the said John Scott from all duties, liabilities, and obligations of every kind whatsoever, which otherwise she, the said Olivia R. Scott, might or could claim under or by virtue of the marriage relation between her and the said John Scott,” etc. Here we have, first, a release to Scott, his heirs, executors, etc., from all liability except such as may arise under the contract; and, second, from all duties, Habilites, and obligations which she might claim by virtue of the marriage relation. This claim is made upon the administrators of Mr. Scott’s estate by virtue of the marriage relation. It can arise in no other way. It is not a claim under the contract, but against and in defiance of it. She claims as widow, and she is widow only by virtue of the marriage relation. We are of opinion that she has no standing as widow to claim a share of the estate. This view we think, is fully warranted by the terms of the release. Moreover, we have no doubt it is in accord with the intention of the parties at the time the agreement was executed.

The decree is reversed, at the costs of the appellee, and it is ordered that distribution be made in accordance with this opinion. C.