Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Chester County, No. 1968-811 in re estate of Alexander Ratony, Jr., deceased.
Franklin L. Gordon, with him Gordon and Ashton, for appellant.
William R. Keen, Jr., with him Milton Apfelbaum, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Concurring Opinion by Mr. Justice Barbieri. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts.
This appeal involves the validity of a postnuptial Separation Agreement.
Decedent, Alexander Ratony, Jr., and appellant, Julia Ratony, were married on June 15, 1940. On June 20, the Ratonys purchased property in Coatesville, Pennsylvania, as tenants by the entireties. Sixteen months later, being then separated, they conveyed the property for a net sum of $620. On December 11, 1941, they executed a formal Separation Agreement. The Agreement was drawn by the decedent's attorney, who also witnessed its signing. After the Agreement was entered into, the parties continued to live apart and appellant made no attempt to attack or set aside or ignore the clear language of this Agreement or the mutual promises they made therein, until after decedent's death on August 26, 1968, twenty-seven years later.
In the Separation Agreement, which contained mutual promises and mutual releases, they (1) divided all the net proceeds of the sale of their home which they owned as tenants by the entireties, namely $620; and (2) agreed to divide all the furniture and personal articles which they owned, as well as certain leased articles; and, most important of all, (3) mutually agreed that ". . . this shall be a full and complete settlement of all property rights between the parties [and] from this time forward, neither party shall have any property interests in any property owned by the other." The parties in this case were (when they made this Agreement) extremely poor. The husband gave his wife one-half of everything he had in the world. In the twenty-seven years in which they lived separate and apart, appellant never made any attempt to go back and live with the husband, or to get any support from him, or to claim any of his subsequently acquired property, or made any attempt to set aside or attack the Separation Agreement.
The Separation Agreement provides as follows:
"This agreement made this 11th day of December, 1941, by and between Alexander Ratony, Jr., and Julia, his wife, witnesseth:
"Whereas differences have arisen between the parties on account of which they are now separated and are now living separate and apart and intending to live separate and apart from each other during the remainder of their natural lives,*fn1 and
"Whereas the home formerly occupied by the parties has been sold and the various debts in connection with the said real estate have been paid, and
"Whereas there has resulted a fund of six hundred and twenty dollars ($620.00), and
"Whereas the parties have mutually agreed upon a division of the furniture, and upon the retention of all personal articles belonging to each other and have agreed to either return or take over certain leased articles.
"Now, therefore in settlement, adjustment and compromise of all property, questions and rights, the parties hereto have mutually agreed that upon the division of the said six hundred and twenty dollars ($620.00) and upon the payment of three hundred and ten dollars ($310.00) thereof to Julia, the wife, that this shall be a full and complete settlement of all property rights between the parties. From this time forward, neither party shall have any property interests in any property owned by the other. [Could any language be clearer?]
"The said Julia hereby expressly agrees that the said division and the said payment shall be in lieu of all claims for support and she hereby expressly agrees that she will not assert any further claim for support against her said husband.
"This agreement does not prevent or in any way militate against the right of either party to ask for and obtain a divorce, nor does it admit or deny any such right.
"In witness whereof the parties do hereto set their hands and seals this 11th day of December 1941.
(s) Alexander Ratony, Jr.
"(s) Walter A. Herley, Witness to both
"Received $310.00 in full. Dec. 14, 1941.
Appellant filed an election to take against decedent's will and, pursuant to Section 11 of the Estates Act of 1947, P. L. 100, an election to take against certain of his inter vivos conveyances. Since the estate is insolvent, the only relevant election is her claim under Section 11. She therefore filed objections to the
first and final account of decedent's executrix, based on her failure to include certain assets which were transferred by decedent during his lifetime. The lower Court found the Separation Agreement to be valid and that, as of the date thereof, "the decedent and his wife possessed no assets other than the proceeds from the sale of their former home together with certain items of furniture and personal items referred to in the agreement of that date." This very important finding of fact, which the minority completely ignore, was certainly and unquestionably supported by the evidence and, together with the above-quoted Agreement and the mutual promises and releases therein contained, is decisive of this case! Accordingly, the Court confirmed the account and dismissed appellant's objections. This appeal followed.
It is appellant's contention that the Separation Agreement, notwithstanding its crystal-clear language and its mutual promises and mutual releases of any property interests in any property then and "from this time forward" owned by the other, discloses a want or failure of consideration, and, consequently, does not ...