Johnson's Estate, Appeal, No. 200

Appeal, No. 200 | Pa. Super. Ct. | Oct 9, 1905

Opinion by

Henderson, J.,

Emma Viola Johnson was shot by Leonard Johnson, her husband, on December 15, 1903, from which wound she died about half an hour later. The shooting occurred about fifteen minutes after eleven o’clock in the forenoon at the house of Orlando Longstreth, where she was staying. When the shooting occurred Mrs. Longstreth ran to one of the neighbors working in a field, who returned to the house with her.

When they arrived Johnson had disappeared. This was about twenty-five minutes past eleven. At about three o’clock or later on the afternoon of the same day the dead body of Johnson was found at a place about 1,700 feet from the Longstreth house with a gunshot wound in the head under circumstances clearly indicating that he had killed himself. Emma Yiola Johnson died intestate and without issue, and the present controversy grows out of the distribution of her personal estate. The appellant presents three objections to the action of the court below: (1), Leonard Johnson deserted his wife, and therefore forfeited his right to inherit her estate; (2), having murdered his wife, public policy forbids that he inherit any part of her estate ; (3), Emma Yiola Johnson survived her husband, and therefore the estate descended to her heirs, of whom the appellant is guardian.

The auditor found that there was no evidence of the desertion of his wife by Leonard Johnson. No exception was filed to this finding, and the appellants cannot now be heard to question its conelusiveness. Where one fails to file exceptions to the report of an auditor impeaching the correctness of his findings or alleging the existence of facts which the evidence should have induced him to find, he cannot exoept to the report on these grounds on an appeal: Dickey’s Appeal, 115 Pa. 73" court="Pa." date_filed="1887-01-03" href="https://app.midpage.ai/document/appeal-of-dickey-6238543?utm_source=webapp" opinion_id="6238543">115 Pa. 73. We have examined the evidence on this subject, however, and find that the action of the auditor was fully Avarranted by the testimony.

The second objection is answered by Carpenter’s Estate, 170 Pa. 203" court="Pa." date_filed="1895-07-18" href="https://app.midpage.ai/document/carpenters-estate-6243158?utm_source=webapp" opinion_id="6243158">170 Pa. 203. Nothing could be profitably added to the clear and decisive opinion in that case.

The evidence shoAvs that the wife died about twelve o’clock. Mrs. Longstreth testified that she died at twelve o’clock, but it appears from other parts of her evidence that she discovered at twelve o’clock that her pulse had ceased to beat. Just how long before she had made an examination of the pulse she was notable to state. That Leonard Johnson was alive for some time after he had wounded his wife is apparent from all the evidence. When his body was found it was warm and limp, and two physicians, who appear to have had experience on that subject, testified from the description given as to the condition, of the body when found that lie had probably been dead from an hour to an hour and a half. Whether Johnson went directly from the house to the place where his body was found does not clearly appear. The sheriff of the county who made an examination of the premises found tracks which led from the back door nearly opposite the barn. Samuel Stewart, who was on the ground before the sheriff and who accompanied the sheriff in the search for Johnson, said, ‘£ We found the tracks down by the barn where he went across the field, ” and that it was perhaps six or eight rods from the house where he first found the tracks. Assuming that Johnson went directly from the house to the place where his body was found, it does not follow as a necessary conclusion that he killed himself immediately on his arrival at that place, although two of the witnesses examined say that there were no tracks or evidences of movements where he was found. He was apparently sitting at the time he killed himself.' The conclusion of the auditor, confirmed by the court below, that Johnson survived his wife, is supported by evidence, and. we are not persuaded by the argument of the learned counsel for the appellant that it is not justified by the testimony. Facts found by an auditor and approved by the court below will not be disturbed except for manifest error : Nauman’s Appeal, 116 Pa. 505" court="Pa." date_filed="1887-06-01" href="https://app.midpage.ai/document/appeal-of-nauman-6238681?utm_source=webapp" opinion_id="6238681">116 Pa. 505. The burden is on the appellant to satisfy us of the error of the court below, and this he has failed to do.

The decree is affirmed.