41 A.2d 353 | Pa. Super. Ct. | 1944
Argued November 20, 1944. This appeal is from the decree of the court below refusing to set aside a widow's election to take against her husband's will. It is very narrow in its scope, confined to determining whether there was sufficient evidence to support the finding of the court below.
James C. Heath died testate September 8, 1943. He gave his entire estate to Naomi Kreisher, Mary Hart, Ruth Bower, and Raymond Heath, the appellants herein. Laura Ackerly Heath filed her election as widow to take against the will. The legatees and devisees in the will petitioned for a citation to show cause why the election should not be vacated and set aside, alleging that the widow had deserted her husband on October 27, 1899, and that under section 6 of the Intestate Laws of June 7, 1917, P.L. 429, 20 Pa.C.S.A. § 42, she had forfeited her rights to take against her husband's will. The widow filed an answer denying the desertion and alleged that the cruel and barbarous treatment of her husband forced her to withdraw from their common home. President Judge MARX, after hearing testimony, found in favor of the widow. Exceptions to his findings were dismissed, the court holding that the testimony was "insufficient to warrant a finding of desertion by the wife."
The salient facts may be summarized as follows. James C. Heath and Laura E. Ackerly were married January 15, 1891. She separated from her husband on October 27, 1899. About seven weeks later she made information against him to obtain support for herself and their three children. The court entered an order directing the payment of $2.75 per week for the support of the children, but denied any allowance for the wife. In 1907 he filed a libel in divorce charging his wife with desertion in 1899. Service was personally had on respondent, but she did not enter an appearance. A *599 commissioner was appointed and after due notice of the time and place a hearing was had on June 25, 1907. The report of the commissioner, however, was not filed until August 27, 1928, over 21 years thereafter, and no decree in divorce was ever entered.
The testimony of James C. Heath as libellant in the divorce case was offered and properly admitted in evidence: Estate ofMartina R. Nixon,
She testified in the instant case that her husband cursed her, threatened her frequently with physical violence, called her vile names, ordered her out of the house, charged her with infidelity, and when she was expecting her first child he choked her and she claimed as a result the child was born a deaf mute. She attributed a miscarriage she had just before the separation to his continuous mistreatment, which had seriously affected her health. She testified that after she left her husband, he frequently visited her home, that she did his washing and ironing, and on one occasion cooked his dinner.
It is argued on behalf of these appellants that the wife was not warranted in leaving her husband's home because of his alleged ill treatment and that in so doing she was guilty of a wilful and malicious desertion which persisted for years. There was no contradition that after the separation the husband lived in adultery for many years with Sarah Alice Freyberger and had by her four children, the appellants herein.
Our references to the testimony have been sufficient to show that the decision in this case depends upon the determination of the factual issues raised; a duty that rested upon the adjudicating judge. A marriage having been shown, and as no proof was elicited that a *600
divorce was granted, the burden of showing that the widow was not entitled to share in her husband's estate was originally on those claiming under the will. When they established the wife's withdrawal from the common home that burden ceased. Then she was required to go forward and show that her conduct did not amount to a wilful and malicious desertion: Estate of Andrew S.Mehaffey,
The learned court below apparently gave some weight to the conduct of the parties after the separation stating in its opinion: "What ever may have been the true nature of the separation of October 27, 1899 at its inception, it is apparent it was not wilful and malicious desertion thereafter." Mutual consent to a separation within the statutory period is fatal to the alleged desertion within our divorce laws (Olson v. Olson,
The decree of the court below is affirmed at the costs of appellants.
