Ratony Estate

Dissenting Opinion by

Mb. Justice Jones:

I reluctantly must dissent from the view expressed by the majority opinion.

It appears to me that the majority, by reiterating the “reasonable provision or full and fair disclosure” test, has lost sight of the necessity for consideration for this so-called postnuptial agreement. In cases turn *467 ing on the “reasonable provision” standard, there is generally no occasion to question whether there is any consideration; the usual inquiry is whether a sufficient amount has been given. On the other hand, an implied corollary to the “full and fair disclosure” test is the requirement that there be consideration to support the agreement. Although I would affirm the court below only if the latter alternative — the “full and fair disclosure” test — is met, I find it necessary to first question the reasonableness of Alexander Ratony’s provision for his wife.

While realizing that many prior decisions of this Court indicated that the crucial examination date for the “reasonable provision” test is the date of execution, I, initially, articulated the statement that, “such reasonableness must be determined as of the date of the agreement and not by hindsight”. Kaufmann Estate, 404 Pa. 131, 137 , 171 A. 2d 48, 51 (1961). I have never intimated any displeasure with this principle and, contrary to the majority’s assertion, I do not now advocate the adoption of any hindsight test.

Perhaps the crux of my dispute with the majority’s “reasonable provision” examination merely represents a different perspective. Nonetheless, it is no coincidence that the majority states at two places in its opinion, in slightly different words, “the husband gave his wife one-half of everything Tie had in the world.” (Emphasis added.) To my way of thinking, a more correct statement of this thought would substitute the pronoun “they”: “the husband gave his wife one-half of everything they had in the world.” Indeed, as I shall demonstrate shortly, I would state that, “the husband gave his wife everything she had in the world.”

Reviewing the agreement, Julia Ratony received: (1) one-half the proceeds of the sale of the former residence — a fund she was entitled to as a matter of law; (2) her personal effects — property which she *468 owned and controlled at all times; and (3) certain pieces of furniture — one-half of which belonged to her anyway, cf., Lindenfelser v. Lindenfelser, 396 Pa. 530 , 153 A. 2d 901 (1959), and DeLuca v. DeLuca, 388 Pa. 167 , 130 A. 2d 179 (1957). * Since all of this tangible property was legally owned by Julia Ratony, she received nothing for the release of her intestate share which was not hers originally. Accordingly, I would hold that when a wife receives nothing besides that which she already had and not only releases her husband from his support obligations but also foregoes her right to share in his estate, such agreement is manifestly unreasonable.

Returning to the “full and fair disclosure” test, it is my position that even if there had been a full and fair disclosure (a dubious assumption in my opinion), there is no consideration to support this agreement. Besides the precedents in this Commonwealth cited by Justice Roberts in his dissenting opinion, the overwhelming weight of authority recognizes that a post-nuptial or separation agreement, like any other contract, must be supported by valid consideration. 41 Am. Jur. Husband and Wife, §262 (1968); 26A C.J.S. Descent and Distribution, §58b (1956). Although the majority notes that the legal principles governing ante-nuptial and postnuptial agreements may sometimes differ due to the consideration supporting the agreement, the general equation of these two types of contracts overlooks the rule that, “[t]he marriage, since it is *469 already existing does not furnish consideration for a postnuptial agreement or settlement as it does for an antenuptial agreement.” 41 Am. Jur. 2d Husband and Wife, §263 (1968). Accordingly, it becomes necessary to search for Alexander Ratony’s elusive consideration.

Insofar as I have already demonstrated that Julia received no tangible benefits, the only arguable consideration supplied by Alexander Ratony was his corresponding release of his intestate share in Julia’s estate; so framed, the sole question is whether the mutual release by each spouse of his or her interest in the estate of the other constitutes the valid consideration necessary to support a postnuptial separation agreement. My research discloses a conflict of authority on this point. Compare, Unger v. Mellinger, 37 Ind. App. 639 , 77 N.E. 814 (1906), with Edwards v. Edwards, 267 Ill. 111 , 107 N.E. 847 (1915). See, also, Smith’s Adm’r v. Price, 252 Ky. 806 , 68 S.W. 2d 422 (1934); Hall v. Greenwell, 231 Mo. App. 1093 , 85 S.W. 2d 150 (1935). Employing the familiar principle that a spouse’s release of his or her intestate share supplies the consideration for a transaction with the other spouse, the Illinois Supreme Court in Edwards held that the widow who released her dower interest in exchange for her spouse’s relinquishment of his interest in her property was barred from sharing in his estate. Relying on the principle that the intestate share is not a present interest when the contract is entered, the Appellate Court of Indiana came to a contrary conclusion in Unger as it held a widower received no consideration from his wife for his release and hence could claim his intestate share. Analyzing these two rationales, I am persuaded by the Indiana Court. In the situation where the surviving spouse is the one who relinquished his or her intestate share in exchange for certain property, I would rely on the rule that such release is a valid consideration. However, where the *470 deceased spouse is the one who relinquished his or her intestate share in exchange for certain property, the deceased spouse has never furnished anything since that spouse’s intestate share in the estate of his or her mate was divested by the prior death of the decedent. Accordingly, in the mutual release situation, the deceased spouse, whoever it may be, has never surrendered anything.

For these reasons I dissent.

Since Alexander Ratony was alive when the furniture was divided, there is no occasion to invoke the common law presumption that the husband owned the furniture contained in the marital home at the time of his death: King Estate, 387 Pa. 119 , 126 A. 2d 463 (1956); Matheny Estate, 164 Pa. Superior Ct. 18 , 63 A. 2d 477 (1949). Despite this Court’s approval in King Estate , I question the continuing validity of this presumption. See, Fine v. Fine, 367 Pa. 227 , 77 A. 2d 436 (1951).