dissenting. — The decision of the question raised by these exceptions depends upon the construction of the contract or antenuptial agreement executed by Mone I. Fridenberg and Sadie S. Spicker on July 20, 1922, in pursuance of which they were married on the following July 23rd. By this contract, both parties retained the right to the ownership and control of their respective properties, including the right to dispose of the same by will, as if they were sole and unmarried, except that Fridenberg agreed, in consideration of said marriage, that Sadie Spicker “shall have and receive from his estate as his wife, in the event of her surviving him, the sum of $15,000, unless he shall by will give or bequeath to her a larger sum.” And Fridenberg relinquished and waived all rights in the estate of Sadie Spicker to which he might in any manner become entitled as husband of said Sadie Spicker, and she relinquished and waived all her rights in the estate of Fridenberg as his wife, excepting the said sum of $15,000, in the event of her surviving him.
It seems clear to me that the real and only purpose of the agreement was to' limit and define the part or share of Fridenberg’s estate that Sadie Spicker might claim as his wife under the general law which gives her the right, in case of intestacy, there being no issue, to one-half of his estate (with a preferential allowance of $15,000), or, in case of a will, the right to elect to take against the will her widow’s share of one-half of the estate. Marriage, which brings with it a change of the status of the contracting parties, gives to each of them these property rights in the estate of the other in the event of survivorship, and in this contract the parties agreed that these rights should be modified by substituting for the general provisions of the law a scheme of distribution which seemed to them to be proper in the circumstances of their own *708case. What Sadie Spicker stipulated in exact terms was that she should receive, as the surviving wife of Fridenberg, the sum of $15,000 in lieu of the larger share to which she would be otherwise entitled, and the marriage of the parties was a sufficient consideration for such release.
It is, of course, true, and no one disputes it, that marriage is a valuable consideration for an obligation to pay money. The parties may, if they choose, assume the position of debtor and creditor, instead of merely modifying their rights as husband and wife. This is well illustrated by Jones’s Appeal, 62 Pa. 324, where Jones, in his antenuptial contract, agreed to “settle upon and secure to the party of the second part (his intended wife), by will or otherwise,’’ a certain annuity, &c., in the event of her surviving him, she releasing on her part all claims on her intended husband’s estate. The marriage was consummated, the husband died insolvent and his widow was held entitled, as a creditor, tp share with other creditors in the distribution of his estate. But in the present case it was agreed that Sadie Spicker should receive from the estate of Fridenberg $15,000 as his wife — not as a creditor.
I am, therefore, of opinion that the inheritance tax was properly deducted from the $15,000 so to be awarded to Sadie Fridenberg. Counsel at the argument cited numerous cases from other jurisdictions on both sides having more or less relevance to the questions here presented, such as Illinois v. Field, 248 Ill. 147; Eaton v. Eaton, 233 Mass. 351; Re Vanderbilt, 184 N. Y. App. Div. 661; 226 N. Y. 638; Hill v. Treasurer, 227 Mass. 331, and Re Minor, 180 Pac. Repr. 813; but I do not think it necessary to discuss them, as none is binding on this court, and the question is purely one of construction of this antenuptial agreement.
I would sustain the exceptions.
Henderson, J., concurs in the dissenting opinion.