Opinion by
J ames J. Crater died intestate on September 3,1949, leaving to survive him a wife and eight first cousins but no issue. As the value of the net estate for distribution was less than $10,000, the wifе claimed the whole of it by virtue of Section 2 (3) of the Intestate Act of April 24, 1947, P. L. 80, 20 PS §1.2 (3). The learned auditing judge rejected the wife’s claim in its entirety on the ground thаt, for upwards of a year previous to her husband’s death, she had wilfully and maliciously deserted him and had thereby forfeited all interest in his estate: see Sеction 6 (b) of the Act of 1947, supra, 20 PS §1.6 (b). During the course of the audit, the wife died. Her executor was substituted of record for her and thereafter filed excеptions to the decree nisi which the auditing judge entered awarding the fund for distribution (after transfer inheritance taxes) to the eight cousins. The court en banc dismissed the exceptions and confirmed the adjudication. *460 From the final decree entered, the wife’s executor has appealеd.
The sole issue involved was whether the wife was guilty of wilful and malicious desertion. The evidence adduced at the hearing was meager and much of it оf no probative value. However, from the findings of the auditing judge, which the court en banc confirmed, and from undisputed testimony, the following is a summary of the mаterial facts. The decedent and his wife were married in 1915 and lived together until 1918 or 1919 when the husband left the marital domicile and never returned to it. He did not, hоwever, leave the community but continued to dwell in the neighborhood where he peddled ice. After the husband’s departure, two sisters of the wife moved in with her where all three of them lived until 1923. From 1923 until 1929, the wife’s whereabouts were unknown to Crater or even to her brothers. What became of the sisters does not appear. During the four or five years that the wife had lived separately from, but in close proximity to, her husband, she made no effort to obtain аn order of support against him. Some time prior to 1929, she began living with one Robert Reardon, as his wife, and continued so to do down to the date of her death in 1951; it is Reardon who is the executor of her will and the present appellant. In 1929, she and Reardon purchased a property in Chester County to which they took title as husband and wife. They lived in that property for seventeen years and, upon selling it in August 1946, contemporaneously acquired, as tenants by the entireties, another property in Chester County where they lived together until the wife’s death.
The burden of proof was upon the heirs to еstablish their allegation that the wife was guilty of wilful and malicious desertion:
Estate of
Mehaffey,
The proofs adduced by the wifе, or her representative, failed to meet her burden. In a case such as this, there is no presumption from the mere fact of the separаtion that the withdrawing spouse left the common abode without reasonable cause:
Lodge’s Estate,
supra, at p. 187. The burden is upon the one claiming such want of reasonable cause to prove facts tending to support the allegation. The cases cited by the appellant as to a dеparting spouse’s burden of proving reasonable cause for his withdrawal from the common residence (e.g.,
Ingersoll v. Ingersoll,
There is not a word of credible testimony in the instant case from which it could be found that the separation was the husband’s fault. So far as the record discloses, it could as well have been the wife’s treatment of her husband that caused him to leave. The claimant made but а slight effort at the hearing to insinuate through vague and indefinite testimony of one witness that the husband might have had an improper interest in another woman while he and his wife were living together. That testimony was so utterly lacking in probative force or credibility as not to merit serious consideration. On the othеr hand, the record affords a reasonable inference that the husband did not wilfully and maliciously desert his wife. She never *463 sought an order of support аgainst him and, apparently, not a divorce. Crater’s place of residence was at all times known to her or readily ascertainable by her. One of her brothers had no difficulty locating him years after the separation; and the testimony taken at the hearing established his continuous plaсes of residence in the locale of his abode with his wife at the time of the separation. Is it likely that she would have lived for at least twenty-onе years in open adultery with Reardon if she had just cause for divorce from her husband? Would she not have acted, if she could, to regularize by marriagе her continuing illicit relation with her constant paramour?
The most favorable finding for the wife that can be made is that the separation was cоnsensual. And, as already stated, where a separation has its inception in mutual consent of the parties, it becomes a wilful and malicious desertion on the part of the spouse who thereafter is guilty of conduct violative of the marriage vows: see Bowman’s Estate, supra; and Lodge’s Estate, supra. Accordingly, the learned court below was correct in concluding on the basis of the findings that the wife was guilty of wilful and malicious desertion and that she thereby forfeited her right to claim, under the intestate law, against her husband’s estate.
Decree affirmed at the appellant’s costs.