Manfredi Estate
Opinion by
Frank Manfredi, of Washington, Pa., died on February 12,1955, intestate and unmarried. The Orphans’ Court found that a sister of the decedent was entitled to decedent’s estate. The Court also found that an alleged nephew, Fiore Manfredi — who claimed that he was born in San Mango D’Aquino, Italy, October 26, 1909 and that he was the son of Fedele Manfredi and Teresa Mendicino, who were eventually . married on April 30, 1916 in San Mango D’Aquino — was not a legitimate child of decedent’s brother Fedele, and consequently was not entitled to a share of the decedent’s estate. This claimant took no appeal. The Court likewise found that Mary Maola, the appellant, was not the legitimate child of decedent’s brother, Fedele Manfredi, and consequently was not entitled to a share of the decedent’s estate.
The Manfredis were poor Italian people who from 1907 until 1912 lived in a shanty in Washington, Pa. The shanty, which consisted of 2 or 3 rooms, was owned by decedent and was occupied (1) by the decedent, and (2) by his brother, Fedele Manfredi, and (3) by Joe Gallo, and (4) by Mary Yanni, and (5) in 1912 for 4 or 5 months by Mary Maola’s mother, Catherine Fiorelli.
Appellant’s proof that she was the legitimate daughter of decedent’s brother, Fedele, may be thus summarized:
(a) Mary’s own testimony that her mother told her that
Fedele
was her father. She never knew her father, because he left her mother and herself when she was about six months old to return to Italy in 1913
(b) Mrs. Grace Mary Papa testified that she moved to Smith’s Ferry in 1912; that Fedele and Ms wife were already there; that he referred to Catherine as his wife; and that the Italian families in Smith’s Ferry, numbering 5 or 6, “all took it that they were husband and wife”. About four months after Fedele left for Italy, Ms brother Frank came and said Fedele told him to remove all the furniture, which he did. Catherine then moved into the apartment with Mrs. Papa, where she remained for four or five months.
(e) Louis Yanni testified that he knew Fedele and Catherine; that Fedele sent to Italy for Catherine; that he visited their home in Smith’s Ferry; that they referred to Mary as their “baby”; and that several Italian people in Smith’s Ferry knew them as man and wife. The auditing Judge, who saw and heard the witnesses, stated that he was a confusing witness.
(d) Frank Ricitelli testified that he worked with Fedele in 1911 in East Liverpool, Ohio, and that he lived practically next door to him in that town; that Fedele and Catherine lived together there, and he and the neighbors thought they were man and wife. TMs testimony of cohabitation and reputation in East Liverpool, Ohio, was contradicted by every other one of appellant’s witnesses.
(e) Antonio Yanni testified that he saw Fedele in Smith’s Ferry in 1913; that Fedele said he had a wife and kid at home; and that after May, 1913, Fedele was sick and returned to Italy. He further testified that he never heard anybody discuss the reputation of Fedele and Catherine as to whether or not they were married.
if) Appellant also called Anthony Comfort, administrator of Frank’s estate, as on cross-examination.
Appellee proved by Anthony Comfort’s cousin, James Comfort, that the latter knew Joe Gallo and Frank Manfredi for the 50-year period during which he lived in Washington, Pa.; that Gallo told him he had sent to Italy for Catherine; and that when Catherine arrived in this country she went to live in decedent’s shack in Washington, Pa., with Joe Gallo, Frank Manfredi, Fedele Manfredi and Mary Yanni.
Appellee offered in evidence a certified copy of the marriage application of appellant’s mother Catherine to John Leon, dated February 10, 1914, which was approximately 7 months after Fedele returned to Italy. In this application, which was signed by Catherine by a mark, in response to the question as to whether there was a prior marriage, the answer was “none”. The application also showed that Catherine applied for this marriage license in her maiden name, Catherine Fiorelli, instead of in the name of Catherine Manfredi, which would have been her legal name if she were married to Fedele. Appellee also offered in evidence a certificate certifiéd to by J. J. Kirby, a Justice of the Peace, that Catherine Fiorelli and John Leon were married by him on February 10, 1914. The record also shows that Catherine and John Leon’s first child, Frank Leon, was born on May 2, 1915, and that they had two more children. The auditing Judge correctly admitted these documents — in fact there was no objection thereto.
“[Nevertheless] a wife is competent to prove the fact and time of her marriage, the date and place of birth of her child, the name she gave the child, the fact of access, her separation from her husband, her own adultery, where she and the child have lived, who supported the child, and any other independent facts affecting the question of legitimacy, even though some of those facts may result in establishing illegitimacy: Janes’s Estate,
One of the difficulties with Mary Maola’s claim is that if Catherine had entered into a common law marriage with Fedele as soon as she arrived at the shanty to marry Joe Gallo or Fedele, and was pregnant 4 or 5 months later, Frank Leon, the first child born of the ceremonial marriage of Catherine and Leon on May 2, 1915, would be illegitimate, as would every other child of this marriage who was born before the impediment, i.e., the death or divorce of Fedele, was removed. Appellee further proved that appellant in public schools and in her application for marriage used the surname Leon and not the name Manfredi.
The trial Judge correctly decided that Catherine’s application for marriage and her ceremonial marriage to John Leon in 1914,
when considered with all the other evidence, in the case,'
.“particularly the weakness of evidence of reputation and cohabitation as husband and
Marriage in Pennsylvania is a civil contract by which a man and a woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonial; and (2) common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness,
by words
— not in futuro or in postea,
but
— in
praesenti,
uttered with a view and for the purpose of establishing the relationship of husband and wife:
Fiedler v. National Tube Company,
Because it is often difficult to prove a common law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and coexist — constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general. Constant cohabitation, even when conjoined with general reputation are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage:
Nikitka’s Estate,
. . ‘The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof of reputation for such purpose must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others:’ Hilton’s Estate,
“. . . The law, of necessity, imposes a heavy burden on one who grounds his claim on an allegation of common-law marriage. As said by President Judge Keller in Baker v. Mitchell,
Kerwin Estate,
We approve the findings and conclusions of the lower Court that Mary Maola is not a legitimate child of Fedele Manfredi and therefore is not entitled to a share in distribution of the estate of her alleged uncle, Frank Manfredi.
Decree affirmed; each party to pay their respective costs.