#### Price’s Appeal. [Price’s Estate.]

A parol post-nuptial agreement, by which the wife agrees to receive a cash payment in full of all claims and demands against her husband, is valid, as to personalty, and will be enforced against the surviving wife.

Misrepresentations, as to the amount of the husband’s estate, in an answer made by the husband in divorce proceedings by the wife, will not operate as a fraud sufficient to avoid the agreement, where the wife was aware the representations were false before she accepted the money: Per Dreher, P. J.

The receipt of the money, in such a case as this, would operate as a ratification of the contract, although entered into by her counsel in the divorce proceedings : Per Dreher, P. J.

The widow’s exemption, under the Act of April 14, 1851, will not be allowed in such case, where the wife separated from her husband and lived apart from him until the time of his death.

March 5, 1889.

Appeal, No. 302, Jan. T., 1889, by Lucetta S. I. Price, widow of Perry Price, deceased, from O. C. Monroe Co., to review a decree dismissing exceptions to the report of an auditor on the distribution of the balance in the hands of the administrator of Perry Price, deceased.

' The facts were found as follows by the auditor, Henry J. Kotz, Esq.:

“ The decedent, Perry Price, died on Jan. 31,1886, intestate, leaving to survive him Lucetta S. I. Price, who claims to be his widow, and eight children. The fund for distribution is the proceeds of the personal estate of said decedent. The said Lucetta S. I. Price is the second wife of said decedent, and his said eight children were the issue of a former marriage.

“The marriage between said Perry Price and said Lucetta S. I. Price, nee Lucetta S. Ink, was contracted on or about March 18, 1880. In 1882, the said Lucetta S. I. Price filed, in the court of common pleas of Monroe county, to No. 17 of May Term, 1882, her libel for divorce a mensa et thoro, with alimony, against her said husband, Perry Price. On May 16, 1882, the said Perry Price filed his answer, in said court, to his said wife’s petition, for a limited divorce.

“ Negotiations for a settlement of the differences and disputes between Perry Price and his wife, were afterwards considered, and, on Jan. 1, 1883, J. B. Storm, Esq., counsel for said Lucetta S. I. Price, in consideration of the payment to him, for his client, Mrs. Price, by Perry Price, of $656.15, executed a receipt and release to .said Perry Price, purporting to release and discharge him from all claims and demands of his said wife.

“ Lucetta S. I. Price claims to have distributed to her, as the widow of Perry Price, deceased, from the fund for distribution, $300 as her widow’s exemption, and one-third of the fund under the intestate laws of Peitosylvania. These claims are objected to by the children of the deceased on the ground that, in the life-time of Perry Price, she received from him $656.15 in full discharge and satisfaction for all claims and demands against him as her husband, and *555caused to be executed to him a release debarring her from her thirds or dower at law in his estate.

“ To this objection to her claims, the widow replies that the said release executed by her attorney to her husband was obtained by fraud and misrepresentation of said Perry Price as to the value of his property and general financial standing.

“ Counsel for the parties háve produced numerous authorities upon the questions of ‘ authority of attorneys; ’ ‘ time in which application for appraisement of widow’s $300 exemption must be made;’ ‘effect of accepting the consideration, or part consideration, of contracts; ’ ‘validity of deeds of separation between husband and wife; ’ ‘ fraud and misrepresentation, etc.; ’ but, after all, the duty of the auditor in the matter is, mainly, to discover the intention of the parties to the release or receipt of Jan. 1, 1883, by the evidence adduced, and to find out, by the same means, whether or not the release was obtained by the fraud of Perry Price, or by the false representation by him of the value of his property.

“ It is not shown who first advanced the proposition of settlement — whether Perry Price or his wife, — or how it was brought about; but it is fair to presume, and some of the evidence justifies the presumption, that Perry Price wished to settle as cheaply as he could, and that his wife wanted to get as much money as she could. Neither is it shown what amount of personal property Perry Price owned at the time of his settlement, or what personal estate he has acquired since then.

“ We have a great deal of evidence as to the value of real estate in 1882 and 1883, but, after a careful review of all this evidence, and the mean value ascertained from the testimony of all the witnesses, we find that it does not very materially differ from the value placed upon it by Perry Price himself in his answer to his wife’s petition for divorce. We see no attempt at misrepresentation in the estimated value fixed by him on his real estate, and William H. Griggs swears that he heard Mr. Price say that he would take $1800 for all his land in the fall of 1885. But the incumbrance upon his real estate, referred to in his wife’s libel in divorce, was not his personal or individual debt; it was a balance owing by him as surviving executor of the estate of Abraham Yetter, deceased, to said estate. Is this an attempt at misrepresentation ? If so, then it was a dangerous experiment. The lien was entered in the court of common pleas of this county on Feb. 22, 1882, and shows that the debt of $3949-27 was the balance due by him, as per his account, as the surviving executor of said estate. It was a public record, entered nearly three months before Perry Price’s answer to his wife’s proceedings in divorce was filed, and nearly a year before the settlement was affected, and open to the inspection of Mrs. Price and her counsel. We do not see how Mrs. Price was deceived in this matter, nor do we discover any sufficient element of fraud or misrepresentation in the transaction to vitiate the settlement made on Jan. 1, *5561883. Was Price a poor man on May 16, 1882? He says so in his answer of that date, and all the evidence before us as to his property at that time is, in real estate, valued at from $1700 to $2500, with an incumbrance of $3949.27 upon it. This incumbrance or judgment of $3949.27 was subsequently paid by Perry Price, but where he got the money we do not know, nor is it within the scope of our duty to ascertain. It was trust money, and, if Perry Price had used it or any part of it about his individual business, it was his duty to restore it to the estate of Abraham Yetter, deceased, and he did.

“ Nor do we know how it is, if he was a ‘ poor man, possessed of no property except a farm in Price township, which would bring at cash sale probably not over $1500, on which there is a judgment lien to the amount of $3949.27, no income except what is derived from the produce of said farm, which is barely sufficient to support his family, sixty years of age, and unable, by reason of physical infirmity and age, to do a full day’s work, ’ on May 16, 1882, that his personal estate at the time of his death amounted to about $3,000, and that he owned considerable of real estate, unencumbered.

“ It was alleged that he had money invested in the west, and one of the witnesses says that he heard Perry Price say that he had brought about $6500 or $7500 from the west; but this evidence is too meagre for the basis of a judgment.

“We believe that Perry Price and his wife entered into the agreement of Jan. 1, 1883, in good faith, and that Mrs. Price received and accepted from her husband $656.15 in full satisfaction and discharge of all her claims and demands against him, and in discharge of her thirds and dower in his estate, and that the said claimant, Lucetta S. I. Price, has failed to show that said agreement or release of Jan. 1, 1883, was procured by the fraud or misrepresentation of Perry Price. Her claim is, therefore, refused.

“ With this dismissal of her claims for want of establishing alleged fraud, and maintaining that her attorney, Mr. Storm, had sufficient authority from her to execute a sufficient receipt in the premises, together with her receiving and retaining the consideration of the receipt, it becomes unnecessary to consider the other propositions of law advanced by counsel.”

The following exception was filed to the auditor's report:

“ The auditor erred in not distributing to Lucetta S. I. Price, the widow of Perry Price, deceased, one-third of the personal estate, and $300, the widow’s claim under the Act of 1851.”

The court dismissed the exception jn the following opinion, by Dreher, P. J.:

“ Lucetta S. I. Price, widow, claimed $300 under the statute allowing a widow of a decedent to have set apart to her property to that amount, and also one-third of the residue of the personal estate. The amount for distribution, after deducting the costs of the audit, is $2,358.85, in the hands of the administrator, on settlement of his account. The claim of the widow is resisted by the children *557and heirs of the decedent, on the ground that she, for a good and valuable consideration, paid to her by the decedent in his life-time, relinquished any right or claim she might have, as his widow, in his estate. Perry Price was twice married. By his first wife he had several children, to whom, it seems, the claimant was not agreeable as step-mother.

“ The intestate and the claimant were married in 1880. They separated in 1881 or 1882, she leaving the house of the intestate. She commenced proceedings for divorce from bed and board with alimony, to No. 17, May Term, 1882, in the court of common pleas of Monroe Co., on the ground of cruel and barbarous treatment. The respondent answered, denying the allegations of barbarous and cruel treatment, and alleged that the libellant’s quarrelsome disposition and abuse of his children occasioned all the trouble. Negotiations between the parties, through their respective counsel, resulted in a settlement; and, on Jan. 1, 1883, the respondent paid to Hon. John B. Storm, attorney of the libellant, the sum of $656.15, and took from Mr. Storm a receipt in the words and figures following: ‘ Lucetta Price, by her next friend, Theodore Snyder, *v.*Perry Price. In the court of common pleas of Monroe county. Received Jan. 1, 1883, of Perry Price, the defendant above-named, the sum of $656.15, in full of all claims and demands which the said plaintiff may have against the said defendant, for alimony or for support, as the wife of the said defendant; they, the said parties, having agreed to live separate and apart from each other, and neither to be compelled to cohabit with the other, and neither to have any claim upon the other; and the said plaintiff doth hereby agree that the said sum of $656.15 is in full payment of all claims and demands that the said plaintiff, as the wife of the said defendant, may have against the said defendant, and in bar of her thirds and dower at law, and in full payment of all costs due in said suit. The above suit discontinued, but it is understood that in doing so plaintiff does not surrender her right to commence proceedings at once in the court of common pleas of Monroe county, for an absolute divorce from the bonds of matrimony. J. B. Storm, plaintiff’s attorney.’

“ This receipt was to be followed by a more formal settlement, to be signed by the libellant; but no other writing was ever executed. The money received by Mr. Storm, from the intestate, was paid to the claimant. She contended before the auditor, and now contends, that the receipt given by her attorney, Mr. Storm, does not debar her of her right to the $300, or to one-third of the personal estate of the intestate, because, she says, 1st, Mr. Storm, as her attorney in the divorce suit, had no power to release or relinquish her rights as the widow of the intestate; and, 2d, that the receipt and agreement of relinquishment of claim upon the estate of the intestate, was obtained by fraud and misrepresentation.

“ Mr. Storm, as attorney in the divorce suit, had no power to make an agreement for separation and relinquishment of the rights *558of Mrs. Price in her husband’s estate, as his widow, unless specially-authorized so to do. He could do so if specially authorized by her, or she could ratify such act of agreement made by him for her. She .gave no previous written authority, nor did she subsequently by writing ratify this act.' The question arises whether she could give such previous authority, or subsequently ratify such act, by parol.

“ In Gackenbach *v.*Brouse, 4 W. & S. 546, it was held that a parol ante-nuptial settlement, by which the husband and wife agreed that the wife’s chattels should continue hers notwithstanding the marriage, and they were so treated by him during the marriage, was binding at the decease of either or both, and the husband had no right of survivorship. In the opinion, per curiam, it is said: ‘ A parol ante-nuptial settlement, such as this, being in consideration of marriage, which is a valuable one, is binding at the expiration of the coverture. No statute requires it to be in writing, where the object of the contract is the wife’s chattels, and here it covers the whole case, for it precludes not only the husband’s ownership during coverture, but his right of survivorship, at the dissolution of it. The provision of the intestate law was not designed fora case where the course of the property at the wife’s death was marked out by a settlement.’ If an ante-nuptial parol agreement is good, why is not a post-nuptial one good? Post-nuptial contracts are valid without the intervention of a trustee for the wife. Hutton *v.*Hutton’s Adm’r, 3 Pa. 100. There is no statute or rule of law requiring a post-nuptial contract to be in writing, any more than an ante-nuptial one. True, in both instances, so far as such contracts concern real estate, as respects purchasers and creditors, they fall within our recording Acts. In Houghton *v.*Houghton, 14 Ind. 505, s. c. 77 Am. Dec. 69, a verbal ante-nuptial agreement was held to bar the wife of her claim to $300, under the statute of Indiana; and Perkins, J., delivering the opinion, citing Barnett *v.*Resor, 9 Ind. 347; Livingston *v.*Livingston, 2 John’s Ch. 537; Malin *v.*Coult, 4 Ind. 535, says: ‘ The foregoing cases show that the contract might have been valid even if it had been made during coverture. It was affirmed and executed during that relation.’ In Miller’s Ex’rs *v.*Miller, 16 Ohio, 531, in note to Houghton *v.*Houghton, supra, it was held that ‘ a parol post-nuptial agreement, made in view of a voluntary separation, and fully executed by the husband, whereby, fora fair and just consideration, the wife relinquished all claim to a distributive share of the husband’s personal estate, in case she survived him, will be upheld and enforced in equity, and the intervention of a trustee is unnecessary.’

“ It seems to us that these cases show that a parol post-nuptial agreement is valid, and, if performed by the husband, will be enforced against the surviving wife. Mrs. Price would be bound, therefore, by a parol authority given to her attorney to make such contract, or by a subsequent parol ratification of his act, done by virtue of an *559assumed authority, where the agreement was executed and performed by the husband, and she received the consideration. That Mr. Storm was empowered by. her to make the agreement he did, by prior appointment, does not distinctly appear. Such prior authority might perhaps be inferred from his acting as attorney for that purpose, and from the fact that she subsequently received from him the money; but the receipt of the money, it seems to us, was a ratification of his act, and made the agreement binding upon her.

“ It is said, however, that she was deceived as to the value of the property of her husband at the time she accepted the money, and that he fraudulently misrepresented his pecuniary condition. Is this so ? She knew what he had stated in his answer to her libel for divorce and alimony, as to his pecuniary condition; and knew, as appears by the testimony of Mr. Storm, that he had more property than he represented in his answer. Mr. Storm was called and sworn in her behalf, before the auditor. The receipt embodying the-agreement being shown to him, he said: ‘ I drew this receipt, signed it, and delivered it, either to Perry Price or his counsel, Mr. Holmes. I think I handed it to Mr. Holmes. Mrs. Price was not present when the receipt was signed. I told Mrs. Price to accept the proposition to pay her the $656.15 ; that it was the best thing she could do under the circumstances. I would say that I urged her very strongly to accept the offer. She was reluctant to do so. After the money was paid to me, she did not want to take it, claiming that Perry had over-reached her in the settlement; that she had found out that Perry had invested money in the west, and that what he swore to in the answer was not true. I then told her that I had settled by her consent, and, so far as I was concerned, it must stand.’

“ Here, by her own showing, we have the fact that, before she took the money from Mr. Storm, she had the knowledge of what she now claims to have been a falsehood or misrepresentation as to the value of her husband’s property, and on the *ground*of which she claims to have the agreement declared void. With full knowledge, of the misrepresentation, if there was misrepresentation, she took the money her husband had paid to her attorney, in consideration of her relinquishment of any claims to his estate in case she survived him, and she is concluded by that act. If she felt that she was being imposed upon and wronged, she could have refused to accept the money, and proceeded in her divorce suit. She chose not to do so, and it is too late now for her to complain. The money was paid to her attorney Jan. 1, 1883, and Perry Price died on Jan. 31, 1886. It does not appear when she received the money from Mr. Storm, but no doubt soon after it was paid to him; she, as rvell as her counsel, no doubt, took into consideration the mutations in the pecuniary affairs of men, and she was willing to take the money, rather than run the chance of getting less or nothing. It was possible that Perry Price might die penniless, and so it was possible that she might die first. Besides, the auditor has found that *560there was no fraud or misrepresentation; and the evidence fails to convince us that he was wrong in his conclusion.

“As to the widow’s claim to $300, it could not be sustained, even in the absence of the agreement of settlement, for the reason that she had been living apart from her husband several years before his death, and was not a member of his household: Odiorne’s Ap., 54 Pa. 175 ; Platt’s Ap., 80 Pa. 501.”

Claim disallowed. Lucetta S. I. Price then took this appeal.

*The assignment of error*specified the action of the court in dismissing the exception to the auditor’s report and confirming the • same absolutely.

*Charlton Bitrnett,*with him *W. W. Watson,*for appellant.

Mrs. Price and her counsel were not bound to set on foot an investigation to ascertain whether Price’s sworn statement in his answer to the libel, and his statement to her counsel, as to the value of his property and the encumbrance on the same, were true: Kline *v.*Kline, 57 Pa. 120.

The receipt of money by Mrs. Price cannot be held to be an equitable estoppel, if the agreement of separation was the result of fraud and misrepresentation, or if she had not a full knowledge of all the facts concerning the value of Price’s property at the time the agreement was made. “ A post-nuptial contract, to be binding, under the most favorable circumstances, must in every way be fair and unexceptional on equitable grounds.” Campbell’s Appeal, 80 Pa. 298.

Mrs. Price was at least entitled to the widow’s exemption of $300. She was not too late in her application. The case is precisely like the case of Kirkpatrick’s Est., 5 Phila. 98, in which it is held that “ Where the interests of other parties are not affected by the delay, the estate being all in money in the hands of the executor, the widow making her claim for $300 before the auditor is not too late.” It is clearly distinguishable from Davis’s Ap., 34 Pa. 256, or Baskin’s Ap., 38 Pa. 65, in each of which cases inconvenience would have been caused, or rights affected by allowing the claim at a late stage of .the administration. Here no delay has resulted, nor has anyone been injured.

The fact that Mrs. Price was living separate and apart from her husband at the time of his death, does not defeat her right to the widow’s exemption: Terry’s Ap., 55 Pa. 347; Simpson’s Est., 22 W. N. C. 172.

S'. *Holmes,*with him *J B. Williams,*for the appellee.

There was no evidence to sustain the appellant’s allegations that the averments of the answer were false; the lien was a good claim against the land; the assets with which it was paid would not be properly included among his assets; and there is no rule of law which justifies the presumption that because a man dies to-day, leaving an es*561tate of $2,473.85, he must have had that amount four years ago. No man is presumed guilty of perjury. ^

March 15, 1889.

Kline *v.*Kline does not apply. There was here a total absence of that mutual confidence on account of which the betrothed wife, in Kline *v.*Kline, was held not bound to make inquiry.

That a post-nuptial agreement, such as was executed by Mr. and Mrs. Price, will be sustained in law and in equity, is deducible from the following authorities : Gackenbach *v.*Brouse, 4 W.- & S. 546; Forwood *v.*Forwood, (Ky.) 56 S. W. 361; Hutton *v.*Hutton’s Adm’r, 3 Pa. 100; Houghton *v.*Houghton, 14 Ind. 505; Miller’s Ex’rs *v.*Miller, 16 Ohio, 531.

Where a wife leaves her husband and renounces all conjugal intercourse a considerable time before his death, she is not such a widow at his death, as is contemplated by the Acts entitling her to administer his estate, and to receive the $300: Odiorne’s Ap., 54

Pa. 175; Platt’s Appeal, 80 Pa. 501; Hettrick *v.*Hettrick, 55 Pa. 290.

Per Curiam,

Judgment affirmed.