Appeals, Nos. 43 and 44, Jan. T., 1953, from decree of Orphans' Court of Bucks County, Mar. T., 1952, No. 30088, in Estate of Russell R. Stauffer, deceased. Decree affirmed.
Emanuel H. Klein, for appellants.
Harry Goldbacher, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeals are from a definitive decree of distribution of the orphans' court awarding to Marie B. Ducellier, as surviving spouse of Russell R. Stauffer, who died intestate, her share of the estate under the intestate law. Claimant remarried after decedent's death. She claimed as surviving spouse under an alleged common law marriage, following an illicit or meretricious relation with decedent. Decedent's only other next of kin are two sisters, the appellants.
An experienced and able auditor heard the testimony and carefully weighed all the evidence. He made comprehensive findings of fact, accompanied by sound and accurate conclusions of law. His findings and conclusions were affirmed by the court in banc.
We deem it superfluous to recite in detail the factual situation. Having read and considered the testimony, we appreciate the reluctance and hesitancy of the auditor to accept as true the oral testimony of
claimant concerning the existence of the alleged marriage. There can be no serious question that the relationship in its inception was illicit and meretricious. Between February and July 1934 the parties lived together alone in an apartment over decedent's garage. The auditor or the court below would have been gullible indeed had they found that no illicit and meretricious relation existed. As the relationship was illicit and meretricious in its inception, it is presumed to have continued so until a change in such relationship was affirmatively established. In the Estate of Mary F. Hughes, 98 Pa. Superior Ct. 328, where the relations between the parties were illicit and meretricious at the beginning, Judge LINN (later Justice LINN of this Court) said, p. 332: "The legal consequence, the presumption, the inference to be made from that evidence, is, that their relations thereafter remained as they were before -- meretricious, and condemned by the law. To the inquiry -- how long that legal consequence continued? the law answers -- until changed by conduct that the law regards as sufficient proof of the establishment of a lawful relation, i.e. marriage. Appellant does not contend that there was a ceremonial marriage after his divorce; nor does he contend that the parties married 'by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife': Murdock's Est., 92 Pa. Superior Ct. 275, 279. Yet the burden of proof was on him: Davis Est., 204 Pa. 602." This Court has cited that case with approval: Pierce v. Pierce, 355 Pa. 175, 49 A.2d 346; Rosenberger Estate, 362 Pa. 153, 65 A.2d 377.
With respect heavy burden placed upon her, claimant sought to establish a change in relationship by proof of the existence of a common law marriage created by an oral ...