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ZANFINO ESTATE (11/09/53)

November 9, 1953

ZANFINO ESTATE


Appeal, No. 138, March T., 1953, from decree of Orphans' Court of Allegheny County, 1950, No. 1696, in Estate of Mary Zanfino, or Mary L. Zanfino, deceased. Decree affirmed.

COUNSEL

Harry Alan Sherman, for appellant.

Frank Reich, with him Harry J. Benjamin, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 375 Pa. Page 502]

OPINION BY MR. JUSTICE BELL

A very narrow question is presented by this appeal: Were the following facts, which were admitted by the pleadings, sufficient to deprive a husband of his right of election to take against his wife's will?

Decedent and Louis Zanfino were married April 29, 1949, and separated on May 15, 1949. They never actually cohabited together during their married life. Decedent filed a libel in divorce against Louis Zanfino at an undisclosed date, but the case was never heard. On June 21, 1949, decedent made her last will in and by which she bequeathed and devised her entire estate to her niece.

Decedent died April 10, 1950. Louis Zanfino, her husband, filed an election to take against her will on July 3, 1950. Louis Zanfino (a) never contributed to the support of his wife, and (b) wilfully and maliciously deserted her on May 15, 1949, and (c) by reason of the embarrassment, humiliation and distress inflicted by Louis Zanfino, Mary, his wife, committed suicide on April 10, 1950.

Assuming the truth of all of these averments, the last of which appears very far fetched, each of them is devoid of legal significance or merit.

Failure of a husband and wife to cohabit does not invalidate a valid marriage. Two kinds of marriage are recognized in Pennsylvania: (1) Ceremonial, which petitioner avers this was; and (2) Common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It requires no cohabitation to validate it. Cohabitation plus reputation are essential only in a common law marriage,

[ 375 Pa. Page 503]

    where, when conjoined, they may give rise to a presumption of marriage. See Kerwin Estate, 371 Pa. 147, 162, 163, ...


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