Terry's Appeal

55 Pa. 344 | Pa. | 1867

The opinion of the court was delivered, July 3d 1867, by

Agnew, J.

— The main controversy in the court below was, whether the appellant was the wife of George Terry. Three auditors were appointed to hear the case, who, after taking the testimony of many witnesses, found in favor of the marriage, and the court below approved of their finding. They also found that Terry has deserted his wife, and was absent from her for ten years before his death, he living in Lancaster county, and she in Philadelphia with her mother, and keeping her two children, the issue of their marriage. She seldom heard from him, and he was dead eighteen months before she was apprised of his death. Her first information was by a letter from the executor in September, when she immediately employed counsel, and appeared before the auditors in the following month and claimed the $300 provision under the Act of 1851. The auditors allowed her claim, but the Orphans’ Court set it aside on the ground of laches, holding it to have been the duty of Mrs. Terry to inquire and ascertain the death of her husband in due season to make the demand. The auditors having found that no actual notice or knowledge existed until the receipt of the letter from the executor, we agree with them in saying that .we know of no rule of law which requires a married woman to take notice, at her peril, of the death of her husband who has deserted her, and had been absent for a long period before and at the time of his death.

The appellee cites the case of Anna F. Spier, 2 Casey 233, and now contends that Mrs. Terry is not entitled to the provision of the Act of 1851, because living separately from her husband in the city of Philadelphia. In an opinion just read in Hettrick’s Ex’r. v. Hettrick (ante 290), from Cumberland county, we have decided that where the family relation between husband and wife has been voluntarily broken up and she is living apart with a provision for maintenance, though called alimony, and so continues at the husband’s death, she is not entitled to $300 under the Act of 1851. But in this case there was no voluntary relinquishment of the relation on part of Mrs. Terry and no provision for her; while after her husband’s desertion she kept the children and maintained her family relation along with them so far as it lay in her power. There is no reason why the provision of the law should not apply to her. It is precisely a case which the Act of 1851 intended to meet in omitting the words “ who were residing with him at the time of his death’,” contained in the Act of 1850. In such, a case the family relation exists in contemplation of law, although actual cohabitation be suspended by the illegal act of the husband.

The decree of the Orphans’ Court is therefore reversed, and the auditors’ report, allowing Mrs. Terry $300, is confirmed, and the costs are directed to be paid out of the estate of George W. Terry.