Appeal, No. 98 | Pa. | Jan 2, 1906
Opinion by
■ This is an action of ejectment by the surviving husband to recover possession of certain real estate of which his wife died seized. The defendants are the children and heirs at law of the deceased wife. The right of the husband as tenant by the curtesy to enjoy the use and possession of the real estate in
Where the facts show a desertion, it is presumed to be willful and malicious, and the burden is on the husband to show reasonable and lawful cause for it: Bealor v. Hahn, 117 Pa. 169" court="Pa." date_filed="1887-10-03" href="https://app.midpage.ai/document/bealor-v-hahn-6238714?utm_source=webapp" opinion_id="6238714">117 Pa. 169; Hahn v. Bealor, 132 Pa. 242" court="Pa." date_filed="1890-02-10" href="https://app.midpage.ai/document/hahn-v-bealor-6239764?utm_source=webapp" opinion_id="6239764">132 Pa. 242.
It is conceded that the husband withdrew from the home of his wife July 4, 1900, under circumstances requiring him to show reasonable and lawful cause for his action. At the trial the learned court instructed the jury that the manner in which the husband left his wife and family on the date mentioned, and the fact that he had remained away for upwards of a year before attempting to return, raised the presumption of a wilful and malicious desertion under the law, and placed upon him the burden of showing that it was not so. The husband met this burden by testimony giving in detail the occurrences which led to his withdrawal from his house, and his repeated attempts to effect a reconciliation with his wife and live with his family. It is in evidence that on several occasions he went back to his home and attempted to see his wife but was unsuccessful. He failed in these efforts because the doors were locked and his wife would not admit him to her presence. The evidence further shows that the wife sent him a letter in which he is notified not to come upon the premises or annoy her further with his visits. The husband is corroborated by other witnesses showing, or tending to show, that he made efforts to return to his home and live with his wife and family. Under these circumstances the learned trial judge very properly submitted the case to the jury to determine whether the presumption of wilful and malicious desertion had been rebutted by the evidence. The jury returned a verdict in favor of the
The first assignment of error raises the question of the admissibility of the testimony of Andrew Mackey, because the conversation referred to was not in the presence of the wife. It is argued that what the son said in the absence of the mother could not be used for the purpose of showing that the husband did not willfully and maliciously desert his wife. The answer to this contention is that the testimony was offered for the purpose of contradicting Lon Weller, the son, and as bearing upon his interest, bias and credibility. It was competent for this purpose. The observations of the learned trial judge, wherein it was stated that this testimony bore generally upon the family relations and the question of the willful and-malicious desertion of the husband, did no harm and do not constitute grounds for reversible error. What has been said about the first assignment of error applies generally to the second.
It was a question for the jury to determine whether the husband had willfully and maliciously deserted his wife for one year or upwards prior to her death, so as to deny himself the right as tenant by the curtesy to the use and possession of the real estate of which she died seized. The jury has found in favor of the plaintiff and we see no reason to disturb that finding.
Judgment affirmed.