Appeal, No. 324, Jan. T., 1957, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 1119, in case of Florence Wolfsohn v. David H. Solms et al. Order reversed.
Nochem S. Winnet, with him Esther Polen, Daniel Lowenthal, and Fox, Rothschild, O'Brien & Frankel, for appellant.
W. Bradley Ward, with him Josephine H. Klein and Schnader, Harrison, Segal & Lewis, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
In this action of assumpsit in which the plaintiff seeks to recover from the estate of her deceased husband $15,065 allegedly due for her support and maintenance under a separation agreement, the lower court denied plaintiff's motion for judgment on the pleadings and this appeal followed.
On March 26, 1956, plaintiff and her late husband who were living apart entered into an agreement "to settle the question of [plaintiff's] proper maintenance and support."*fn1 This contract which was to remain in effect for a period of one year from the date of its execution and which was to be binding on the "heirs, executors, administrators and assigns of the parties," provided, inter alia, for payment to plaintiff of $350 a week for maintenance and a maximum of $250 a month for apartment rental.*fn2 In paragraph eight of the contract plaintiff expressly agreed to "sign the Federal Income Tax Return jointly with [her husband] ... for the year 1955 and in the future as long as the parties are entitled and permitted to file a joint Federal Income Tax Return." Plaintiff carried out her promise
and her husband did all that was required of him under the agreement until his death on July 4, 1956. Thereafter, however, the executors and trustees of decedent's estate declined to make further payments contending that the decedent's obligations under the separation agreement terminated on his death. Mrs. Wolfsohn then brought the present action against the estate and, alleging the absence of any dispute of fact, moved for judgment on the pleadings which included her complaint, defendants' answer containing new matter and plaintiff's reply to new matter.
The trial court held that the decedent's estate had no obligation to plaintiff under the agreement, and therefore denied Mrs. Wolfsohn's motion. However, believing that factual issues might be involved in determining whether the estate, (on the theory of promissory estoppel), was under a duty to reimburse plaintiff for her expenditures for rent, the court refused to enter judgment on the pleadings in favor of the defendants. Although the court's order is interlocutory, plaintiff has properly taken this appeal therefrom under the provisions of the Act of April 18, 1874, P.L. 64, §§ 1, 2, 12 P.S. §§ 1097-1098. See Grossman v. Hill, 384 Pa. 590, 592 n.1, 122 A.2d 69 (1956); Epstein v. Kramer, 374 Pa. 112, 120, 96 A.2d 912 (1953). Under prior practice see, e.g., Commonwealth Trust Co. of Pittsburgh v. Allegheny Cemetery, 324 Pa. 78, 80, 84, 187 Atl. 506 (1936).
A husband's obligation to provide maintenance and support for his wife terminates with his death. Defendants argue that the Wolfsohn agreement constituted only an acknowledgment and a mutually accepted measure of the decedent's legal duty, and was therefore not binding upon the husband's estate. See Patton v. Patton, 2 ...