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ARCHER ESTATE (01/16/50)

January 16, 1950

ARCHER ESTATE


Appeal No. 159, Jan. T., 1949, from decree of Orphans' Court of Philadelphia County, 1946 No. 506, in Estate of Alexander T. Archer, Jr. Decree affirmed.

COUNSEL

Samuel Gordon, with him Leonard B. Gordon, for appellant.

John P. Byrne, Jr., for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Drew

[ 363 Pa. Page 535]

OPINION BY MR. JUSTICE DREW

Alexander T. Archer, Jr., died intestate in the City of Philadelphia on July 21, 1945.At the audit of his estate, the learned auditing judge found the testimony of Winifred Archer his widow, to be incredible and dismissed her claim to a surviving widow's share on the ground that she had separated from her husband by mutual consent and when she subsequently committed adultery she was guilty of wilful desertion, thereby forfeiting her rights under the terms of Section 6 of the Intestate Act of June 7, 1917, P.L. 429.*fn1 Exceptions taken by the widow were dismissed by the court en banc and a final decree affirming the adjudication was entered. From that decree the widow now appeals.

Archer married Winifred J. Walsh, appellant, on March 1, 1920. She was then 19 years of age and he 27. They rented a small furnished apartment in Akron and lived there for five months. At the end of that time they separated and never again met. No divorce was ever obtained. Sometime between 1925 and 1928, Archer entered into a meretricious relationship with one Helen E. O'Brien in Philadelphia and remained with her until his death in 1945. In 1929 appellant, who resided in Buffalo, began living with another man, a child being born to them on July 29, 1930. At the date of the hearing she was still living with that man and representing herself to be his wife.

[ 363 Pa. Page 536]

Appellant's testimony, which the auditing judge disbelieved, was that both she and Archer worked for Good-year Tire & Rubber Co., she in the office and he in the factory, and that two days after the mariage he told her to get a factory job so that they could make more money. She further testified that she did get a factory job but that he still was not satisfied and that during the five months that she lived with him, he suggested eight or ten times that they could make money "easy" and "fast" by moving to Detroit, which was then a boom town, and renting an apartment where he would bring men to her for immoral purposes. She stated that upon her continued refusal to accede to that request, Archer gave her $65.00 and told her to get out and that she then returned to her mother's home in Buffalo.

Appellant first contends that the burden was on those contesting her claim to show that she had deserted Archer and that they failed to carry that burden. However, when they established her withdrawal from the common home, they satisfied that burden and it was then her duty to show that her leaving was not a wilful and malicious desertion: Heath Estate, 156 Pa. Superior Ct. 597, 600, 41 A.2d 353.

The sole evidence appellant offered to justify her conduct was her own testimony. That testimony was rejected by the auditing judge as incredible. Appellant argues that since her testimony was uncontradicted, it may not be disbelieved by the auditing judge and that his disbelief of it was, therefore, capricious. That argument is wholly without foundation in the law. There is nothing which compels the fact finding body, whether it be judge or jury, to accept as verity uncontradicted testimony. Credibility of witnesses is always for the finders of fact: Nanty-Glo Boro. v. Amer. Surety Co., 309 Pa. 236, ...


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