Hayes's Estate, 23 Pa. Super. 570

Hayes's Estate

23 Pa. Super. 570 | Pa. Super. Ct. | 1903

Per Curiam,

The objection, that in the distribution of a deceased wife’s estate, the controversy being between her husband electing not to take under her will and others claiming under the will, the husband is not a competent witness in his own behalf for any purpose, is clearly shown in the opinion filed by the learned auditing judge to be not well founded. Is he a competent witness to the fact of her adultery, where his testimony does not involve the disclosure of confidential communications made by her to him? This question is not particularly discussed in the opinion filed by the learned judge, but his ruling upon the audit, and the disposition made by the court of the exceptions to his adjudication, necessarily imply an affirmative *575answer to that question, and in that conclusion we concur. The reason for the rule of the common law which forbade husband or wife to give testimony tending to criminate the other, although not a party to the suit, was the disturbance of the marital relation which would result from the admission of such testimony. Upon the termination of that relation by the death o’f one of the parties the reason of the rule ceases, except as to confidential communications, and the rule itself as applied to such a case, has not been established or preserved by the act of 1887. The precise question did not arise in Dumbach v. Bishop, 183 Pa. 602, but the foregoing conclusion is in harmony with the reasoning of the court in that case.

The reasonable and lawful cause which will justify a husband in separating from his wife and refusing to contribute to her support will prevent the Act of May 4, 1855, P. L. 430, from operating to debar him, after her decease, from claiming his curtesy or his rights under the intestate laws. It must be such cause as would .have been sufficient to entitle him to a decree of divorce against her and the burden of proof is upon him. As to the legal sufficiency of the cause here set up bj^ the appellee as a justification for his admitted separation from and refusal to support his wife, there is, of course, no question. Nor can there be any question that there was ample evidence, if believed, to warrant a finding that the cause existed in fact. The case turned almost wholly upon the credibility of the witnesses and the weight of the testimony. After a careful scrutiny and consideration of the testimony, and of the very earnest argument of the appellant’s counsel, we see no reason to doubt the correctness of the conclusions reached by the learned auditing judge, and approved by the court, upon these questions. Perhaps the learned judge attached more significance to the flight of the wife than the fact was entitled to under the circumstances, yet it is apparent from his opinion as a whole that he would have reached the same conclusion, if that fact had been absent. His finding that the appellee pleaded guilty, when as matter of fact he was convicted by the jury, is an immaterial error that did not affect the result. As to these and the other minor questions raised by the assignments of error, we deem it enough to say that we find no error which would justify a reversal of the decree.

*576The case is very plainly within the general rule that an auditing judge’s findings of fact, approved by the court below, there being sufficient evidence to sustain them, will not be disturbed by the appellate court, in the absence of manifest error, especially where the findings depend as largely upon the credibility of the witnesses as they do here.

Decree affirmed and appeal dismissed at the appellant’s costs.