Ratony Estate

Dissenting Opinion by

Mr. Justice Roberts:

I am compelled to dissent for three reasons. In the first place, I am unable to accept the majority’s view that Julia and Alexander Ratony mutually intended the document signed on December 11, 1941, to be a waiver and a release of Mrs. Ratony’s statutory interest in her husband’s estate. Secondly, I think the agreement should be held void and unenforceable for reasons of public policy. Finally, the agreement is invalid for want of consideration.

The majority opinion ignores some of the most fundamental principles underlying our domestic relations law. Primarily, it ignores the distinction between marriage settlements (postnuptial and antenuptial agreements) concerning the disposition of the spouses’ respective interests in the estate of the other, and separation agreements concerning the rights of spouses to live apart and the right of a wife to support, maintenance, and the property presently owned jointly between them as tenants by the entireties. This distinction is crucial in many circumstances. For example, a separation agreement may be abrogated by a reconciliation, whereas a postnuptial property settlement will not be annulled merely by reconciliation, and it is the intention of the parties and the surrounding facts which determine what type of agreement has been created in each case. See Zlotziver v. Zlotziver, 355 Pa. 299 , 49 A. 2d *471 779 (1946); Commonwealth ex rel. DiValerio v. DiValerio, 169 Pa. Superior Ct. 477 , 82 A. 2d 687 (1951); Commonwealth ex rel. Makowski v. Makowski, 163 Pa. Superior Ct. 441 , 62 A. 2d 71 (1948); see generally, 18 P.L.E., Husband and Wife, §§24, 101, 103; Note, 40 Dick. L. Rev. 41 (1935).

I believe that the Ratony document was a separation agreement rather than a marriage settlement. In any case, no matter what it was, I do not think Mrs. Ra-tony intended to waive her statutory interest in Alexander Ratony’s estate. We have a tradition of closely scrutinizing nuptial agreements and the surrounding circumstances. E.g., Mary Ann Slagle’s Appeal, 294 Pa. 442 , 144 Atl. 426 (1928). The Ratony agreement nowhere makes reference to after acquired property, nor does it by its express terms refer to a wife’s right of election to take against her husband’s will or her intestate rights. The agreement merely states that sum of three hundred and ten dollars is “. . . a full and complete settlement of all property rights between the parties” and that from then on “. . . neither party shall have any property interests in any property owned by the other.” Contrary to the majority’s rhetorical question, this language is far from clear. Compare the language of the agreement at issue in Hillegass Estate, 481 Pa. 144 , 244 A. 2d 672 (1968). 1

There is no evidence in the record that Mrs. Ratony even knew of the existence of her intestate rights or her right to take against her husband’s will. It is well established that where a husband and wife separate be *472 cause they cannot live happily together, the wife is entitled to her statutory interest in his estate on his death absent a clear expression of waiver of those rights. Lawton’s Estate, 266 Pa. 558 , 109 Atl. 699 (1920). This principle holds true as long as the surviving spouse has not forfeited her right to the estate, as. for example, she would if she willfully and maliciously deserted her husband for one year prior to his death. Intestate Act of 1947, P. L. 80, §6, 20 P.S. §1.6. See Watt Estate, 409 Pa. 44 , 185 A. 2d 781 (1962); Hudak Estate, 383 Pa. 278 , 118 A. 2d 577 (1955). No such forfeiture occurred in the present case.

Confronted with at best an ambiguous agreement, we should be guided by the traditional rules of construction in this area. Courts do not generally attempt to read a broad waiver of intestacy rights into unclear documents. In Estate of Dick, 102 Pa. Superior Ct. 589 , 157 Atl. 349 (1931) it was stated: “Without the agreement, the law governed the relations of husband and wife, and within well understood limits, the possible disposition or devolution of the property of either. By their agreement, they prescribed for themselves certain changes in the law governing their marital status different from what the law prescribed. But there is no agreement that, on the death of either, the devolution of property prescribed by the intestate law shall not take place. So radical a change in the legal rights of the parties must be stated expressly, or at least appear by inevitable implication: Talbot v. Calvert, 24 Pa. 327 ; Rice v. Rice, 2 W.N.C. 672 ; Scott’s Estate (2), 147 Pa. 102 , 23 A. 214 ; Kaiser’s Estate, 199 Pa. 269 , 49 A. 79 , 85 Am. St. Rep. 785 ; Mark’s Estate, 297 Pa. 290 , 147 A. 54 .” Id. at 592, 157 Atl. at 351 . (Emphasis added.)

I cannot accept the conclusion that Julia Ratony here did what the Dick opinion requires to surrender her interest in her husband’s estate. There also is evi *473 dence that she was completely unfamiliar with financial or legal agreements and that she was not advised by counsel. The intelligence of the wife should be considered in evaluating the reasonableness of the provision for her in a postnuptial agreement. See Kaufmann Estate, 404 Pa. 131, 137 , 171 A. 2d 48, 51 (1961); Warner’s Estate, 207 Pa. 580 , 57 Atl. 35 (1904).

Aside from the question of mutual intention, this agreement should be unforceable for reasons of public policy. While a couple remains married, a husband owes a duty of support to his wife, even where the separation is consensual. Commonwealth ex rel. Davidoff v. Davidoff, 178 Pa. Superior Ct. 549 , 115 A. 2d 892 (1955); Scott v. Scott, 95 Pa. Superior Ct. 273 (1929). If the Ratonys had come into court at the time they signed the agreement, not only their present property but also Mr. Ratony’s future earning power would have been considered in fixing a support order for Mrs. Ra-tony. See Lindenfelser v. Lindenfelser, 396 Pa. 530 , 153 A. 2d 901 (1959); Commonwealth ex rel. Simmler v. Simmler, 134 Pa. Superior Ct. 339 , 4 A. 2d 215 (1939).

One of the most fundamental rules in this area of our domestic relations law is that deeds and postnuptial agreements for the actual and immediate separation of husband and wife are valid when based on a good consideration and are reasonable in their terms. See In re Singer’s Estate, 233 Pa. 55 , 81 Atl. 898 (1911). The majority makes much of the fact that the chancellor found that $620 was all the Ratonys possessed at the time of the agreement. To view such a finding as dispositive of the reasonableness and validity of this agreement is to resist an examination of the attendant circumstances. No matter how minimal the joint property of the Ratonys owned at the time of separation, Mr. Ratony had future earning power. I cannot accept the proposition that $310 was a reasonable provision for Mrs. Ratony’s maintenance and sup *474 port during the remainder of their marriage, taking into consideration her husband’s property, income and earning capacity, and the family’s condition or station in life. See Commonwealth ex rel. Zehring v. Zehring, 186 Pa. Superior Ct. 393 , 142 A. 2d 397 (1958).

While this Commonwealth has not to date joined with those jurisdictions which will not enforce lump sum settlement and waivers of future support, 2 we should at the least carefully scrutinize such waivers, especially where the agreement is unclear. Sound public policy in my view favors an uncompromising determination to preserve important incidents of the marriage relationship during its continuance whatever the contrary sentiments of the parties themselves may be, unless there is a clear and explicit waiver by the wife of her maintenance and support rights, and a showing of an ability to support herself.

Finally, the agreement is unenforceable for want of consideration. Almost a century ago it was established that a court of equity would not enforce a postnuptial agreement if the wife has received no benefit under it, and a wife’s rights under the intestate laws would be preserved for her. Campbell and Others’ Appeal, 80 Pa. 298, 309 (1876) (report of the master, Chief Justice Thompson, adopted by the Court).

This principle was applied in a more modern context in Levine Estate, 383 Pa. 354 , 118 A. 2d 741 (1955). There, husband and wife executed a postnuptial agreement that one-half of a certain checking account would belong to the wife in exchange for her release of all rights in his estate. After the husband died, she elected to take against the will on the theory that here had been *475 a want of consideration because she had been entitled to one-half of the checking account regardless of the agreement, for it was income from her own property.

Our Court, in upholding her claim, noted the following: “. . . One-half of the bank account, was already hers; it could not therefore be regarded as consideration passing under the agreement. The fact that the account stood on the books of the bank in the name of Morris Levine alone, plus his direction to the executors to pay one-half of the fund to Mrs. Levine, would not constitute consideration for her promise to refrain from claiming any part of his estate. Acknowledgement of what clearly belongs to another by law and equity cannot be advanced as consideration. ... It is true that the agreement of 1949 was also under seal, but as to that agreement there was a failure of consideration for, as indicated, Mr. Levine specified what it was he intended to confer upon his wife in exchange for her abandoning all claims to any part of his estate. But he could not give her what he promised, for the cogent reason that it was not his to give. It was impossible for him to pass to his wife what was already hers.” Id. at 358-59 , 118 A. 2d at 743. (Emphasis added.)

In the instant case, Julia and Alexander Ratony owned and sold the property in Coatesville as tenants by the entireties. Appellant was entitled to one-half of the proceeds as a matter of law. Hence, I fail to comprehend how her “agreeing” to waive her rights in his estate for one-half of those proceeds can be viewed as being supported by any meaningful consideration.

The majority urges that the “mutual” promises of Mr. and Mrs. Ratony to waive any interest they each might have in the other’s estate serves as sufficient consideration for this agreement. I have already indicated that I do not accept the proposition that the Ratonys mutually exchanged such promises. Nor do I believe *476 that such an exchange alone is sufficient legally to sustain an antenuptial or postnuptial agreement. In Campbell and Others’ Appeal, supra, it was stated: “ ‘Equity follows the law in this particular, unless equitable considerations in the given cause appear to modify the rule. For instance, where a postnuptial settlement altogether fair and equitable, has been executed and the gift to the wife has passed to her (for post-nuptial settlements, strictly speaking, are mere gifts between husband and wife: Schoul. Dom. Rel. 276), she might in that case in equity be required to perform it; in other words, a chancellor would refuse to restore her to her rights relinquished in the settlement, after the death of the husband. It will depend much, therefore, upon the nature and value of the interest which has been parted with by the wife as a consideration for what she has received by way of settlement, whether or not she ought to be entitled to relief; Cord on Married Women, sec. 35, et seq. The authorities, as also the reason of the thing, seem to teach that . . . the wife . . . is never bound by a mere promissory consideration.” Id. at 306. (Emphasis added.)

The majority’s proposition that Mrs. Eatony’s acquisition of such things as “her absolute liberty” (she was still married), and “a right to a separate existence for her life without any interference from her husband, and (b) without any marital duties, such as the duty to cook or keep house” serves as sufficient legal consideration for this ambiguous agreement is certainly novel and without decisional precedent. I, for one, am unable to accept it.

I dissent.

In Hillegass Estate, the relevant portion of the agreement read as foUows: '“Whereas it is the intention of the intended wife to waive, relinquish and bar all her inchoate intestate and other rights or interests, either as wife or widow of the First Party, in and to any property now owned or hereafter acquired by the First Party, including her right of election to take against the Will of the First Party.’” Id. at 147, 244 A. 2d at 674 (emphasis omitted).

See, e.g., Estate of Duncan, 87 Colo. 149 , 285 P. 757 (1930) ; Trecker’s Estate, 107 Ill. App. 2d 94 , 246 N.E. 2d 56 (1969); Kovler v. Vagenheim, 333 Mass. 252 , 130 N.E. 2d 557 (1955); Leeds v. Leeds, 308 N.Y. 991 , 127 N.E. 2d 845 (1955); see generally, Lindey. Separation Agreements and Ante-Nuptial Contracts, 15-75 (1967).