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AGERTER 0. VANDERGRIFT, CLARK, J. The principal question in this case, arising out of the clause of forfeiture contained in the lease, is decided in Ray v. Western Penn. Natural Gas Co., 138 Pa. St. 576, ante, p. 922. We there held, following our own cases of Galey v. Kellerman, 123 Pa. St. 492, and Wills v. Manufacturers' Natural Gas Co., 130 Pa. St. 222, that as this clause was inserted in the interest of the lessor, he had the option either to declare the forfeiture or to affirm the continuance of the contract, and if the lessor does not choose to avail biunself of the forfeiture, it cannot be set up by the lessee as a defense to an action in affirmance of the lease.
The case differs from Ray v. Western Penn. Natural Gas Co., 138 Pa. St. 576, ante, p. 922, in this, however, that Eva C. Agerter, the lessee at the time of the making and execution of the lease, was and still is a feme covert, being the lawful wife of Christopher D. Agerter, who joined her in the execution thereof; and it is contended that as the said lease was not acknowledged as required by law, it is null and void, and that the plaintiff, upon that ground, if not upon any other, was not entitled to judgment, for want of a sufficient affidavit of defense.
As the validity of the lease in question is not affected by any statute in force at the time the lease was made, the question is to be determined according to the principles of the common law. The contracts of a married woman, at the common law, were absolutely void, but they have been held valid when set up by her in her own behalf, and when she is not in default in performance on her part.
It has been held that she may take a lease; and if she in fact voluntarily perforing all the stipulations on her part to be performed, the lessor will not be perınitted to treat the lease as void, for this would be against equity and good conscience: Baxter v. Smith, 6 Binn. 427. She may take a conveyance in fee of lands to herself, and the fact that it is encumbered with a condition will not prevent its vesting: Bortz v. Bortz, 48 Pa. St. 382; 86 Am. Dec. 603. She may hold lands purchased under an executory agreement upon which she has paid the installments of purchase-money as they fell due, averring her readiness and willingness to pay the balance as it shall become due. Such a contract can be rescinded only on her refusal to perform the conditions: Vance v. Nogle, 70 Pa. St. 176. In Walker v. Coover, 65 Pa. St. 430, it was held that an assignment of bonds to a married woman, as collateral security, upon her undertaking to pay certain debts of the assignor, was good notwithstanding her coverture, she having paid part of the debts and averred her readiness to pay the remainder.
It is not pretended that the plaintiff has not in all respects complied with her contract. She has not sought to avoid the instrument, nor has she interfered with the defendant, or in any way or manner prevented him from operating under the lease. On the contrary, she has respected his rights, has refrained from operating herself, or through others, and, still standing upon her contract, she demands that the defendant shall comply with his covenants. An affidavit of defense setting up coverture, under such circumstances, is insufficient: Kahn v. Pickard, 5 Week. Not. 537.
The judgment is affirmed.
MERTZ V. VANDERGRIFT. CLARK, J. This case is in all respects governed by the principles set forth in our opinion in Ray v. Western Penn. Natural Gas Co., 138 Pa. St. 576; ante, p. 922.
LANDLORD AND TENANT. – Where the tenant so acts as to work a forfeito ure of his lease, the landlord may either treat him as a trespasser, and eject him without notice to quit, or elect to continue the lease and treat him as a touant: Duke v. Harper, 6 Yerg. 280; 27 Am. Dec. 462, and note; Garn. hart v. Finney, 40 Mo. 449; 93 Ain. Dec. 303. And a surety for the payment of rent, in a lease conditioned to be void upon the non-payment thereof, reinains bound, notwithstanding a breach of the condition, if the landlord waives the forfeiture: Clark v. Jones, 1 Denio, 616; 43 Am. Dec. 706, and note.
MARRIED WOMEN, CONTRACTS 07. - A contract with a married woman is biniling upon the opposite party, where she has paid the consideration or per. formed her part of the agreement: Han v. Boody, 20 N. H. 411; 61 Am. Dec. 235.
ESTATE OF WOODBURN.
(138 PENNSYLVANIA STATE, 606.) ESTATES OF DECEDENTS - ELECTION BY WIDOW IN IGNORANCE OF FACTS
NOT BINDING. — Under a statute allowing the widow to take under her husband's will, or to elect to repudiate it and take under the intestate law, an election by her to take ander the will, made in ignorance of the facts, and of her rights and of the relative values of the properties between which she may choose, is not binding upon her, especially if made
shortly after her husband's death. ESTATES OF DECEDENTS -- INCOME, when PASSES TO TENANT FOR LIFE.
Where a testator has ma le a lease of his land for oil purposes prior to his death, un«ler a lease providing that he shall receive a definite portion of the oil produced, and in his will has bequeathed the income of his estate to tenants for life, his share of the oil produced after his death is income, to which the tenants for life are entitled as such. Petition by executors for the distribution of the proceeds of the sale of the estate of Samuel Woodburn, who died in April, 1889, leaving a will, by which he bequeathed the use of a one-third interest in his estate, both real and personal, to be paid yearly to his wife, Mary Woodburn. The use of the remaining two thirds of snch estate he bequeathed to his five children or their heirs, during the lifetime of his wife, to be paid yearly to their guardian, or on “maturity” (majority:?) to each one individually, and on the death of the wife the property to be equally divided between the five children or their heirs. On April 29, 1889, the testator's widow filed a writing under seal, at the request of the executors, by which she elected to take under the will. Shortly thereafter she repudiated this election, on the ground that it was made in ignorance of the facts and of her rights. The court below decided that the widow was not bound by her election to take under the will, but was entitled to take under the intestate laws; and the executors appeal. The remaining facts are stated in the opinion.
T. J. Duncan and John Aiken, for the appellants.
Paxson, C. J. This record presents two questions, which may be briefly stated thus: (a) Was the widow of Samuel Woodburn, deceased, bound by her first election to take under the will? and (b) whether the oil produced from the testator's real estate was a part of the corpus of the estate.
In regard to the first question, the auditor has found that the widow signed the paper electing to take under the will in ignorance of her rights; that in doing so she was ignorantly assenting to what she did not comprehend, to what had never been explained to her; that is, the effect and purpose of the paper. He says: “The executor, shortly after the testator's death, called "pon the widow with the paper showing her ac ceptance of the terms of the will, but does not think he made any explanation of her rights under the will or under the law. He told her what it was for, and she signed it. He further says that at that time he believed she took the same one third under the will that she was entitled to under the intestate law. She says the executor explained to her that it was something relating to Mr. Woodburn's will; that he did not persuade her to sign that first paper; he just said it was a paper connected with the estate. The auditor believed that if she got any impression at all from the executor, it must have been that she was signing a paper which was to give her the same one third she would have taken under the intestato law."
The law upon this point is settled. While there is no allegation that the widow was intentionally deceived or misled, yet the fact remains that she signed the paper in ignorance of her rights, without any attempt on the part of the executor to inform her of them, or of the effect of the paper to which he procured her signature. Indeed, he appears to have been ignorant upon the subject himself. The authorities are clear that nothing less than unequivocal acts will prove an election, and they must be done with a knowledge of the party's rights, as well as of the circumstances of the case. Nothing less than an act intelligently done will be sufficient. She should know, and if she does not, she should be informed, of the relative values of the properties between which she was empowered to choose; in other words, her election must be made with a full knowledge of the facts. The rule applies with especial force where the widow is called upon, as in this case, to make her election shortly after her husband's death: Anderson's Appeal, 36 Pa. St. 492; Cox v. Rogers, 77 Pa. St. 167; Bierer's Appeal, 92 Pa. St. 266.
In regard to the second question, the auditor has found that the testator, prior to his death, had leased his farm for oil purposes. The lessee was to pay $500 in cash, and $6,750 within sixty days from the date of the lease, and one eighth of all the oil produced. The lessee entered under the terms of this lease, and at the time of the testator's death there were three pro ducing wells upon the premises, and a fourth well was being drilled. This last well was producing at the date of the first meeting of the auditor. The oil in the pipe-lines to the credit of the testator at the time of his death was sold by his executors for $697.57. No question arises as to this money. It was clearly a part of the corpus of the estate. The oil run into the pipe-lines since testator's death was sold by the executors for $2,463.77. We are of opinion that this was a part of the income of the estate. It was so held by the auditor and the court below, and we think correctly. The right of a life tenant to operate previously opened mines, and work the same even to exhaustion, cannot be questioned: Eley's Appeal, 103 Pa. St. 303, and cases there cited.
The decree is affirmed, and the appeal dismissed, at the costs of the appellants.
WIDOW, ELECTION OF, TO TAKE UNDER THE PROVISIONS OF HUSBAND'S Will. — A widow who has elected to take under the provisions of her hus. band's will is estopped to assert claims against the estate inconsistent therewith: Nute to Shivers v. Simmons, 28 Am. Rep. 376, 377. But when she makes such election in ignorance of her rights, she is not bound thereby: Note to Black v. Ward, 15 Am. Rep. 176, 177; Adsit v. Adsit, 2 Johns. Ch. 418; 7 Am. Dec. 539. But an election once made, and affirmed by bringing suit, will not be set aside on the ground of mistake, except upon strong and clear proof: Hal's Case, 11 Bland Ch. 203; 17 Am. Dec. 275.
INCOME, TO Whom BELONGS. — As to who is entitled to the income and profits of corporate stock as between the life tenant and remainderman, ses Kuntzleman's Extate, 136 Pa. St. 142; 20 Am. St. Rep. 909, and note; Gibbons v. Mahon, 4 Mackey, 130; 54 Am. Rep. 262, and note 264–269. The tenant for life has the right to the profits obtained from working minos already opened on the land before the commencement of his life estate: Lynn's Ap pell, 31 Pa. St. 44; 72 Am. Dec. 721. See also Stonebraker v. Zollickoffer, 50 MJ. 154; 36 Am. Rep. 364.