Rodenbaugh v. Rodenbaugh , 17 Pa. Super. 619 ( 1901 )

Opinion by

Orlady, J.,

A complete answer to this appeal is found in Commonwealth v. Richards, 181 Pa. 209, where it is held, “ that a valid agreement may be made for separation between a husband and wife, and for an allowance for her support, where the separation is inevitable and immediate, is now too well settled to admit of discussion or require a citation of authorities. The validity of such covenants, although exceptional in their status, has been established by repeated decisions of this court.' Ordinarily these agreements, as in Dillinger’s Appeal, 35 Pa. 357, have been carried into effect through the medium of a trustee; but the undoubted weight of authority is that there may be a-valid agreement for the separation directly between husband and wife without the intervention of a trustee, which the courts will sanction. In such cases the husband will be treated as a trustee for the specific purpose in view, and will be held accordingly. If the object of the agreement is actual and immediate, if the terms are reasonable, and it is actually carried into effect by both parties in good faith, it will be as binding upon the wife as the husband.” See also Scott’s Estate, 147 Pa. 102.

The parties to this action were living separate and apart under the contract of February 15, 1895. Payments on account of the husband’s obligation under that contract had been made by him from time to time, and he does not question the reasonableness of its stipulations, nor can he repudiate his own contract to support his wife and children for the reasons set out in his affidavit of defense. The amount and time of payment — $>20.00 per month payable quarterly — was of his own making, and was as certain as to time as if a definite amount had been named in one payment. The written contract contains a sufficient consideration to sustain it, and the attempt to defeat it by the alleged parol agreement set out in the affidavit of defense is forbidden as unlawful and against public policy: Irvin v. Irvin, 169 Pa. 529. The plaintiff’s rights under the contract can be enforced in her own name, as her separate property right. The demurrer was properly, overruled and the affidavit does not set out any sufficient defense to prevent judgment being entered against the defendant.

The judgment is affirmed.