Kline's Estate , 1870 Pa. LEXIS 325 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— The controversy between these parties was before this court in Kline v. Kline, 7 P. F. Smith 120. That was a writ of error to the Court of Common Pleas of Montgomery county on a judgment in a feigned issue directed by the Orphans’ Court to try the validity of the marriage contract, dated March 21st 1850, between the decedent and Ann Hendricks, who is now his widow. That judgment was reversed, and a venire facias de novo awarded. The present appeal is from the decree of the Orphans’ Court dismissing exceptions to an auditor’s report upon the administration account of Samuel Kline et al., administrators of the said decedent, in which the administrators claimed to set aside and secure on real estate the sum of $800 in order to provide for the payment of the annual sum of $40 to the widow for her life, as stipulated in that contract. That item presupposes its validity, and hence, though in a somewhat different form, we have the same question as was presented in Kline v. Kline.

We there held that the parties to an ante-nuptial contract were not like buyer and seller dealing at arms’ length, but stood in a confidential relation calling for the exercise of the richest good faith, and while it might not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife was unreasonably disproportionate to the means of the intended husband it raised the presumption of designed concealment and threw upon him the burden of disproof. We have now the finding of an auditor in the court below that there was in fact such designed concealment, a finding well supported as it appears to us, by the evidence in the cause.

The whole contest in the court below in regard to the validity of the contract was evidently based upon the assumption that if it was valid it would be an effectual bar to all the rights of the widow under the intestate laws. Upon that question we gave no opinion in Kline v. Kline, as it did not arise; nor does it properly arise here, though it has been urged on behalf of the appellee, that all she released was the right to administration. This may be so. But instead of admitting, she excepted to the item of $800 proposed to be set aside to secure the payment of her annuity under the contract. She did this upon the ground that the entire contract was invalid; and that though she made no claim to administration and in point of fact it had been granted to others. If she might have insisted on the true construction of the ante-nuptial contract, that she was entitled to the annuity of $40, and to her full third in the real and personal estate of the intestate besides, it is very plain that we cannot go back and unravel the proceedings in order to afford her the relief which she now appears to desire. A party cannot in the same breath blow hot and cold, and it would be an anomalous proceeding to reverse on the motion of the appellee upon a ground not taken in the court below and entirely inconsistent therewith.

Decree affirmed, and appeal dismissed at the costs of the appellants.