Estate of Kesler

Opinion,

Mr. Justice Sterrett:

There is certainly no apparent reason why, situated as these parties were, the “ law should regard with disfavor ” the ante-nuptial agreement made by them. Mr. Kesler was advanced in years, had already accumulated a fortune, and had a family by a former marriage; while Mrs. Davidson was lifted out of poverty and comfortably provided for by it. Persons, situated as they were, do not usually act from mere impulse, or contract without consideration; and the court below has accordingly found that “ Every requirement of the law seems to have been complied with in the execution of this contract. A full disclosure was made to the intended wife, and every opportunity afforded her, either to obtain information as to the nature and character of the instrument she came prepared to execute, or object to its execution, if ignorant of its contents or deceived as to its purpose and object. She was not illiterate, but intelligent, and well educated. She was not young and inexperienced, but of mature years, and acquainted with marital duties and rights. She was a free agent, of sound mind, and fully capable of protecting herself. Nor was she under any restraint. The deed of settlement, although of great length, is in the usual form adopted by careful and accomplished conveyancers, and its preamble, in clear and perspicuous language, easily comprehended by a person of even ordinary intelligence, specified the terms and objects of the agreement entered into between the parties. That it was understood by the claimant, we think there is no doubt. And from her necessitous circumstances it is not wholly improbable she was content, assured of the maintenance and comforts afforded by her future husband’s wealth during his lifetime, and the secured annuity of six hundred dollars for her life after his death, to relinquish all further claim upon his estate.”

It is impossible to understand how, consistently with these 'facts, Mr. Kesler can be found to have practised a fraud upon his intended wife in the execution of this contract. In his senile garrulity he may have made statements to his son-in-law which had better have been left unsaid; but, when brought face to face with his wife, he distinctly averred, and she did not deny, that she had never asked him any questions in regard to the agreement, and that he had made the settlement “to protect his family; that she might jump over the traces; that he fully intended if she proved a faithful, good wife, — he only had this to protect himself and his family, — if she proved to be what he thought she was, and what she had now turned out to be, he would have given her at the same time one third.” But, whatever may have been his original intention, in view of the findings of the court below that Mrs. Davidson, knowing her rights and fully informed of the situation, deliberately and in writing released all her interest in her deceased husband’s estate in consideration of the provision made for her by this agreement, and was content, it is incredible that a fraud should have, in fact, been practised on her. Even assuming that the facts are as claimed by her counsel, the quantum of proof adduced is not sufficient to modify the agreement; they were not proved by two witnesses or their equivalent: Thomas v. Loose, 114 Pa. 35.

The agreement must be considered as having embodied the real intention of the parties at its date, and therefore conclusive of their rights. Was there a valid revocation of it ? It will be conceded that there must have been a meritorious or valuable consideration for such revocation: Stickney v. Borman, 2 Pa. 67: and it is very clear that neither of these existed here. The sole inducement was the doing of that which Mrs. Kesler was legally bound to do. She had voluntarily estranged herself from her husband, because of her dissatisfaction with the ante-nuptial contract; there is no pretence that she had any other cause of complaint. If, as has been shown, that was a valid and binding contract, the estrangement was without justification; it was a wanton abuse of the marital relation for mercenary purposes, and reconcilement was her duty. Public policy forbids that the performance of such duty may be made the subject of barter and sale. The law fixes and regulates the marital relation on public considerations, and will not allow the parties to discard and renew it for money. Thus, in Robert v. Frisby, 38 Tex. 219, the Supreme Court held that the husband is not legally bound by a post-nuptial contract in which he hires his wife to live with him. The same principle was affirmed by the Supreme Court of Tennessee, in Copeland v. Boaz, 9 Baxt. 223. And Mr. Justice Allen, of the Supreme Judicial Court of Massachusetts, well said: “ It is as much against public policy to restore interrupted conjugal relations, as it is to continue them without interruption for the same consideration. The right of condonation is not exercised for the sake of justice to the injured party, or with regard to the rights of others or the interests of the public, when it is sold for money, and the law cannot recognize such a consideration: ” Merrill v. Peaslee, 149 Mass. 460. There are no cases, in conflict with this view, decided by this court. It was not involved in Burkholder’s App., 105 Pa. 31, upon which the court below relied.

It is said that abandonment of the legal proceedings instituted by Mrs. Kesler for the revocation of the ante-nuptial contract was sufficient consideration. The answer to this is that she was not prejudiced by that act; the question involved there has been raised here, and has been shown to be without merit. Mrs. Kesler is therefore not in a position to claim the aid of a court of equity, and the decree of the court below must be reversed.

Decree reversed with costs to be paid by the appellee, and record remitted with instructions to distribute the fund in accordance with the foregoing opinion.

On November 11, 1891, a motion for a re-argument, filed by Mr. Samuel P. Hanson and Mr. G. Morgan Eldridge on behalf of the appellee, was refused.