22 Pa. Super. 436 | Pa. Super. Ct. | 1903
Opinion by
A careful examination of the evidence leads us to the conclusion that the learned auditing judge was fully warranted in finding, in substance, the following facts;
That James Divvers died March 18, 1900, intestate, unmarried and without issue. He left to survive him two sisters, Hannah J. Laraway and Rose Divvers. John Divvers, a brother, had died a year earlier, to wit: in March, 1899. From about the year 1855 to the year 1860, John Divvers resided in the county of' Columbia, and was there married in 1857 to one Elizabeth Frederick, with whom he lived about one year, when they separated, she going to the city of Baltimore, Maryland, where she continued to live until her death in 1888. Sometime after 1860 John Divvers returned to Luzerne county where he continued to reside until his death in March, 1899. In or about the year 1861 (the exact date is not certain) John Divvers began living with one Sarah Strickland, treating and holding her out as his wife, and had by her three children, viz: Mary, Harry and Jessie. John Divvers and Sarah Strickland continued to live together until the year 1881, when they separated, and in 1885 following, she regularly married one Frank Kniffen,. with whom she lived until his death in the. year .18.99.'. • . ■
Judge Darte, then of the orphans’ court of Luzerne county, since deceased, held in substance that these children of John Divvers were illegitimate and could not inherit from James Divvers, and awarded the whole of the estate to the sisters of James. Exceptions were filed to the findings of fact and conclusions of law by Judge Darte and his successor, Judge Trout-man, on November 16,1901, in an opinion filed, reversed some of Judge Darte’s findings of fact and conclusions of law, and held that the said children of John Divvers were legitimate and awarded to them one third of the estate of James Divvers, deceased. Judge Troutman’s findings of fact and conclusions of law were excepted to by the appellants, and hence we have this appeal. Judge Troutman made a labored effort to establish the fact from the evidence that John Divvers and his wife, Elizabeth Frederick, separated about seven years before he began to live with Sarah Strickland, the mother of these children. The auditing judge, Darte, who had the witnesses before him, found as a fact that this lapse of time did not exceed five years and probably not more than two years. An examination of thetestimony leads us to the conclusion that Judge Darte’s finding upon this question was substantially correct, and the case ought to be decided upon that theory. We'then have John Divvers
We are of the opinion that when the appellants conclusively proved the marriage of John Divvers with Elizabeth Frederick in 1856 or 1857, and that probably as early as 1861 he began to live with Sarah Strickland, the mother of these children, something more was required than legal presumptions to establish the fact that John Divvers had been freed from his marital contract with Elizabeth Frederick, so that he could contract a new marriage with Sarah Strickland. Upon the facts in this case we cannot agree with Judge Troutman that the burden was upon the sisters of James Divvers .to prove that John Divvers and Sarah were not divorced. We think the facts proved and found fully warranted Judge Darte in the conclusion that the relation between John Divvers and Sarah Strickland thus begun and continued was meretricious. If we are right in this conclusion, then there is nothing in the record to show that such relation changed at any time thereafter. It must be conceded that in the absence of evidence showing a lawful marriage a meretricious connection once begun is presumed to continue. We think the fact of a lawful marriage between John Divvers and Elizabeth Frederick, and the fact that she lived until 1899, and the further fact that in 1881 John Divvers and Sarah Strickland separated, and in 1885 she contracted a marriage, regularly, with one Frank Kniffen, with whom she lived until his death in 1899, rebuts any presumption which might arise under other circumstances that the relation between John Divvers and Sarah Strickland was that of husband and wife. In our opinion the burden rested on the children of John Divvers, as was held by Judge Darte, to prove that they were the legitimate children of John Divvers. They did not do this, and Judge Troutman helped them out by casting the burden upon the sisters of James Divvers of proving that John Divvers and Elizabeth Frederick were not divorced. We think in this case both justice and the rules of law require that where the
The learned court below cites Senser v. Bower, 1 P. & W. 450. This was a case in which the illegitimacy of a claimant was raised, and Gibson, C. J., on page 452, said: “ For civil purposes, reputation and cohabitation are sufficient evidence of marriage; and there is evidently enough in the case to show that the plaintiff’s father and mother were married in fact. But there is said to be the same evidence of a precedent marriage of the mother with another man, who was alive at her second marriage; and hence a supposed dilemma. But the proof being equal, the presumption is in favor of innocence; and so far is this carried in the case of conflicting presumptions, that the one in favor of innocence shall prevail.” This case goes to the extent only of holding that where the' proof is equal the presumption is in favor of innocence. But we have endeavored to show that in the case under consideration the proof is not equal. Our case differs from Senser v. Bower and wife in that John Divvers and Elizabeth Frederick were proved
We cannot concede where a man is proved to have married a woman and within four or five years, while she is in full life, he is found living with another woman and holding her out as his wife, that, without more, the presumption of innocence overcomes the proof that he was the husband of another woman, and therefore could be lawfully married to the second one. In short, we do not consider this a case of equal presumptions. The learned court below seemed to rely on Breiden v. Paff, 12 S. & R. p. 430. In our opinion this case does not sustain ■ the conclusion of the learned judge. Gibson, Judge, said: “John Paff, the plaintiff, claimed under a conveyance-from George Paff and Catherine, his wife, of one third of the premises, as the patrimonial estate of the wife. It was proved that she had been married to one Lesher, who was then dead more than thirty years; and one of the witnesses added that she had three husbands before she married Paff. With the exception of Lesher, there was no evidence to show who’ these three husbands were, or any circumstances respecting them. On this, it was contended, that to establish the validity of the conveyance, it was necessary to show that all these three husbands were dead at the time of executing it, because she must
This case is easily distinguishable from the one under consideration. Mrs. Paff had been married to Lesher who was then dead more than thirty years, and there really was no evidence of her marriage to anyone else except J ohn Paff. It is true that there was a loose declaration of one of the witnesses that she had three husbands before she married Paff. But how far this falls short of the evidence in the Divvers case ? John Divvers’s sisters proved that he was married in 1856 of 1857 to Elizabeth Frederick, and that she was in full life until long after all these children, claimants, were born of Sarah Strickland. Now, couple with this the proved and conceded fact that in 1881 John Divvers and Sarah Strickland separated, and in 1885 she contracted a marriage with Kniffen, and it is absurd to say that there was no evidence but presumption against presumption. We hold that this state of proof clearly cast the burden on those who asserted that the three children of John Divvers were legitimate to at least prove that he was divorced from Elizabeth, his lawful wife. If this had been proved it is possible that they could have stopped without showing an actual marriage between J ohn and Sarah. The presumptions might have justified finding that there was such a marriage.
We have examined with some care the opinion of this court by President Judge Rice in Wile’s Estate, 6 Pa. Superior Ct. 435. This case is relied upon by the appellees. It must be accepted as good law upon its facts, but we do not think its doc
.;-In this case it clearly appears that in 1866 the mother of the' boy whose legitimacy was in question was married to a manwho, deserted her in 1872, after having treated- her with great bru-. tality,,-and after repeatedly declaring that she was not his wife.' She did not marry until in 1884, about twelve years - after her desertion. He was not dead as she supposed when she remarried. But it was-shown that two or three years after his deser-. tion the supposed first husband married another woman, with whom, as his wife, he has ever since lived and. cohabited. Hére we have the long absence of the first husband, we have his declarations that the mother of the boy by the second husband was never his wife,-we have the fact that he married another woman soon after, leaving the mother of the boy and that he continued to live with that woman. Now really what Wile’s Appeal determines is that the facts in that case and the legal presumptions rebutted the idea that Elizabeth was the wife of Benjamin Andrews, at the time of her marriage with-John Shetzline, the father of the boy who was claiming the-right to inherit from his grandfather’s estate.
What we decide in the case under consideration is that its facts and the proper legal presumptions fail to bring it within the rule, in Wile’s Estate. '
Some attention has beeirgiven to the fact that while John'Divr vers and'Sarah Strickland lived together they joined in the execution of a deed which recited that they were husband-and wife. It .appears that this was a quitclaim deed and we do not attach much importance to it. Hannah J. Laraway and Rose Divvers may have believed on Januaiy 7,1864, that John and Sarah were, married,;and yet it may not have been so. Again they may have-
We deem it unnecessary to notice the assignments of error in detail, but in so far as they allege error in the court below in overruling the auditing judge, and in awarding distribution of any part of the fund raised from the estate of James Divvers, deceased, to Harry W. Divvers, Mary J. Sanders and Jessie Divvers Frantz, they are sustained, and the decree of the court reversed at the costs of the appellees. And it is now ordered and decreed that the fund be awarded and paid over to the appellants.