Appeal, No. 211, Jan. T., 1952, from decree of Orphans' Court of Philadelphia County, 1951, No. 294, in Estate of James J. Crater, deceased. Decree affirmed.
William F. Quinlan, for appellant.
Michael C. McManus, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
James J. Crater died intestate on September 3, 1949, leaving to survive him a wife and eight first cousins but no issue. As the value of the net estate for distribution was less than $10,000, the wife claimed the whole of it by virtue of Section 2 (3) of the Intestate Act of April 24, 1947, P.L. 80, 20 PS § 1.2 (3). The learned auditing judge rejected the wife's claim in its entirety on the ground that, for upwards of a year previous to her husband's death, she had wilfully and maliciously deserted him and had thereby forfeited all interest in his estate: see Section 6 (b) of the Act of 1947, supra, 20 PS § 1.6 (b). During the course of the audit, the wife died. Her executor was substituted of record for her and thereafter filed exceptions to the decree nisi which the auditing judge entered awarding the fund for distribution (after transfer inheritance taxes) to the eight cousins. The court en banc dismissed the exceptions and confirmed the adjudication.
From the final decree entered, the wife's executor has appealed.
The sole issue involved was whether the wife was guilty of wilful and malicious desertion. The evidence adduced at the hearing was meager and much of it of no probative value. However, from the findings of the auditing judge, which the court en banc confirmed, and from undisputed testimony, the following is a summary of the material facts. The decedent and his wife were married in 1915 and lived together until 1918 or 1919 when the husband left the marital domicile and never returned to it. He did not, however, leave the community but continued to dwell in the neighborhood where he peddled ice. After the husband's departure, two sisters of the wife moved in with her where all three of them lived until 1923. From 1923 until 1929, the wife's whereabouts were unknown to Crater or even to her brothers. What became of the sisters does not appear. During the four or five years that the wife had lived separately from, but in close proximity to, her husband, she made no effort to obtain an order of support against him. Some time prior to 1929, she began living with one Robert Reardon, as his wife, and continued so to do down to the date of her death in 1951; it is Reardon who is the executor of her will and the present appellant. In 1929, she and Reardon purchased a property in Chester County to which they took title as husband and wife. They lived in that property for seventeen years and, upon selling it in August 1946, contemporaneously acquired, as tenants by the entireties, another property in Chester County where they lived together until the wife's death.
The burden of proof was upon the heirs to establish their allegation that the wife was guilty of wilful and and malicious desertion: Estate of Mehaffey, 102 Pa. Superior Ct. 228, 234; Schreckengost's Estate, 77 Pa. Superior Ct. 235, 237.
But, upon proof of the wife's adultery during the separation, the inference justifiably arose that her open disregard of her marital obligations was intentional and, as a consequence, a wilful and malicious desertion by her. "If, after separation, the wife commits adultery, the separation from that time on becomes desertion within the meaning of the act [of June 7, 1917, P.L. 429]. It deprives her of all interest in the estate": Bowman's Estate, 301 Pa. 337, 340, 152 A. 38. See also Lodge's Estate, 287 Pa. 184, 187-188, 134 A. 472. In that situation, the burden of going forward with evidence to prove that the separation was originally the fault of the husband shifted to the wife. Her subsequent adultery would not operate to bar her claim against his estate if the husband was in fact the one responsible for the separation. "Where such is the case there is a sound public policy to protect the ...