DOLL’S ESTATE.
An ante-nuptial agreement provided that the wife should receive $500 and also the $300 exemption after her husband’s death in lieu of her dower; the wife died first; held her administrator could not claim either of these sums from the husband’s estate.
Appeal from the decree of the Orphans’ Court of York County.
The contest in this case arose upon the construction of the following instrument:
“This indenture made and agreed upon the 27th day ot January, A. D., 1866, between John Doll of Dover Borough in the County of York and State of Pennsylvania, of the one part, and Sarah Breneman, single woman of the Borough of York, in said county, of the other part, witnesseth ; That the said John Doll in consideration of a marriage to be had and solemnized between him and the said Sarah Breneman does for himself, his heirs, executors and administrators covenant, grant and agree to and with the said Sarah Breneman, her heirs and assigns, that she, the said Sarah shall have and enjoy the use and benefit of her separate estate as fully and to all intents and purposes as she enjoyed the same prior to said intended marriage, hereby giving and granting to her the exclusive right and privilege of disposing of the same by will or otherwise, and of receiving the rents, issues and profits thereof, and alter his marriage to the said Sarah Breneman, and after his decease, the "said John Doll hereby covenants for his heirs, executors and administrators, that she, the said Sarah, shall receive the sum of five hundred dollars out of his estate, as also *278the further sum of three hundred dollars allowed to the widows of intestates by the laws of Pennsylvania, out of such part of his estate as she may elect to retain, in lieu and satisfaction of her whole dower in his estate.
And the said Sarah Breneman in consideration of the premises as well as one dollar paid to her by the said John Doll, does for herself, her heirs, executors and administrators covenant and agree to and with the said John Doll, that the foregoing amount so assigned and set apart out of his estate for her shall be in full satisfaction of her dower in his estate, and shall bar her from claiming the same if she shall survive after said marriage, in case he shall not give her any other part of his estate by his will, or some other act done by him after the execution hereof.
In witness whereof the said John Doll and Sarah Breneman have hereunto set their hands and seals the day and year first within mentioned.
Signed and sealed and delivered in presence of George M. Shetter.
John Doll. [Seal.]
S a rah (¡xj) Breneman. [Seal.]
The day after the execution of the above indenture, the parties thereto were married. John Doll had several children living, ny a prior marriage, and Sarah Breneman, one. But they had no children during their marriage.
Sarah died in 1875, while John survived her about three years. He left a will by which he directed “that the net produce of all his real and personal estate should be divided among his children equally.”
Before the Auditor (E. D. Bentzel, Esq.,) appointed to distribute the balance on the Executors’ account, the Administrator of Sarah Doll claimed the sum of eight hundred dollars, given to her by the above indenture, which claim was contested by the legatees under said will. The Auditor, after stating the facts, and giving the points presented by counsel, reported as follows :
The question here to be decided, is, is. the said. Ambrose H. Seiffert, Administrator as aforesaid, entitled to receive the five hundred and the three hundred dollars or either of the said sums *279mentioned in said Indenture ? There are two covenants in said Indenture, in the first the said decedent covenanted for himself, his heirs, executors and administrators, that said Sarah Breneman shall have and enjoy the use and benefit of her séparate estate as fully and to all intents and purposes as she enjoyed the same prior to said intended marriage, all of which consideration seems to have been performed by the said decedent, at least there is no evidence before your Auditor to show that it has not. The second covenant seems to rest upon a certain contingency, and that contingency appears to your Auditor to be the survival of the said Sarah Breneman. Now the tacts are that she died about three years before her husband, John Doll.
“How marriage articles are to be construed is clearly explained in Tabb vs. Archer, 3 Am. Dec. 657-69, in which case the Court decided that “the intention of the parties in marriage articles should be collected from the nature of the agreement, the language and context, the usage in such cases, and the legal rights of the parties, as they existed before, and would have existed after the marriage if no agreement had been made.” In the same case it is also ruled “that marriage articles are entered into between the parties upon a valuable consideration, and being in their nature executory, ought to be construed and moulded in equity, according to the intention of the parties.” In 1st Addison on Contracts, page 480, sec. 327, it was held that “where a man upon the marriage of his daughter, covenanted with her intended husband to give and bequeath, by deed or will, an equal share with his other children of the property he should die possessed of, and the daughter died in the 1 fetime of the covenanter, it was held that the liability upon this contract was discharged by the death of the daughter, as performance had become impossible by the act of God;” Jones vs. Horn, 9 Common Bench Reports 19.
“John Doll, the decedent, agreed that the said Sarah shall receive the sums of money, which were to be in lieu and satisfaction of her whole dower in her estate, to which she the said Sarah agreed. The said indenture in the. opinion of your Auditor contemplated the survival of the said Sarah for the reason that the said moneys were to be in lieu of her whole dower. It *280is very plain that under the laws of this Commonwealth there was no dower due the said Sarah, being she died before her said husband, and since that is so, can the intention of the said covenantor, have been to give to her the said Sarah, or her legal representatives as a consideration of the said marriage absolutely the said several or any of the said sums of money, when it was directed to be in lieu of dower ? It does not seem reasonable to your Auditor.
“Your Auditor is therefore of opinion that the said Ambrose H. Seifiert, Administrator of the said'Sarah Doll, deceased, is not entitled under the said indenture to either the three hundred dollars or the five hundred dollars mentioned therein, because they are in lieu ahd satisfaction of dower, and in this case under the circumstances there could not have been any dower. That the said indenture is of no effect, and without an intention to bind the party, after the reasons and motives for executing it have passed away and that the party is again Sui Juris.” Evans rs. Russell; Legal Gazette, 6 vol., page 130.
“Your Auditor therefore disallows the said claims of the said Ambrose H. Seiffert, Administrator as aforesaid of the said Sarah Doll, deceased.”
Exceptions were filed to this report by Counsel for the Administrator. The Court, after argument, dismissed the exceptions and confirmed the report.
This appeal was then taken, the errors assigned being
1. Dismissing the exceptions and confirming the report.
2. Not awarding the appellant the sum of eight hundred dollars stipulated to be paid to Sarah Doll by the said indenture.
3. Not awarding to him five hundred dollars due by the same indenture.
Cochran & Hay for appellant argued:
The stipulation to pay to Sarah Doll, her heirs and assigns the sum of five hundred dollars and three hundred dollars, is an absolute engagement. It is not conditional upon her surviving him. The consideration is the marriage. This was a valuable consideration; Cord on the Rights of Married Women, page 6 § 11.
*281And in the absence of fraud it will prevail against creditors: Cord on the Rights of Married Women, page 12 § 26; Frank’s Appeal, 9 P. F. Smith 190.
This was an executed contract. Sarah Doll had fulfilled her part of it; Tabb vs. Archer, 3 Amer. Decisions 657.
The maxim actus Dei nerrdni facit injuriam, protects the claim of Sarah Doll, her heirs and assigns in this case. Broom’s Legal Maxims *228; 2 Kent’s Commentaries *163.
She had a perfect right to relinquish her right of dower; Wilson’s Estate, 2 Barr 325.
The word “dower” in the indenture covers all her interests in her husband’s estate; Campbell’s Appeal, 30 P. F. Smith 298; Ellmaker vs. Ellmaker, 4 Watts 91.
' On the execution of the indenture, or, at all events, on the solemnization of the marriage, the stipulated amount of eight hundred dollars became debitum in praesenti, solvendum in futuro, viz., at his death, and so when it fell due, was payable to her or her legal representatives, if she should be no longer living. 1 Chitty on Contracts, 11 Amer. Edi. 138; 1 Chitty on Pleading 119.
W. H. Kain and Jas. Kell, Esqrs, for Appellees argued :
The agreement in this case is made up of several distinct and independent covenants: Lippincott et al. vs. Low, 18 P. F. Smith 314; McShiffery vs. Sheron, 1 Phil. 496.
The first guarantees to Sarah Doll the enjoyment of her separate estate as fully and freely as she enjoyed the same prior to the intended marriage. The second covenant relates to money t.o be received by her in lieu of her right of dower, and is a single covenant, distinct and clearly independent of the first, and to be executed after the death of the grantor.
This second covenant as an attempt to make a disposition of property, to take effect after the grantor’s death, is testamentary: 1 Jarman on Wills 1; Turner et al. vs. Scott, 1 P. F. Smith 126; Frederick’s Appeal, 2 P. F. Smith 338; Long’s Appeal, 5 Norris 196.
This instrument will be treated as testamentary, although not intended as such; 1 Williams on Executors, 6 Amr. Edi. 140; *282Passmore vs. Passmore, 1 Phillimore 216; Bagnal vs. Downing, 2 Lee 3.
To constitute a marriage settlement there must be an intent to benefit, and a person to be benefitted: 3 Wait’s Actions 670.
It must be certain and unconditional: Atherly on Marriage Settlements, chap. VI.
The intention to benefit was contingent on the survival of Sarah, and the person to be benefited was Sarah, without any words of substitution or limitation to heirs or legal representatives.
Courts declare the meauing of contracts, but they ' are not allowed to add words: Frazier et al. vs. Monroe et al. 22 P. F. Smith 166; White vs. Smith, 9 Casey 186.
This instrument was executory: Tabb vs. Archer, 3 Amer. Dec. 657.
By the death of the grautee in the lifetime of the grantor, before any election on her part, and before the other contingencies had happened, the execution of the contract became impossible, actu Dei, and the courts would have relieved Doll from the performance thereof on application: Russell's Appeal, 25 P. F. Smith 269.