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AUCH'S ESTATE. APPEAL DOUGHERTY. (AUCH ESTATE.) (12/29/53)

: December 29, 1953.

IN RE AUCH'S ESTATE. APPEAL OF DOUGHERTY. (AUCH ESTATE.)


COUNSEL

Roland J. Christy, Christy, Harry & Jones, Norristown, for appellant.

Sabato M. Bendiner, Mervin J. Hartman, Philadelphia, Paul P. Wisler, Norristown, Busser & Bendiner, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Reno

[ 174 Pa. Super. Page 407]

RENO, Judge.

This is an appeal by two residuary legatees under the will of L. Wayne Auch from a decree of the court below awarding a family allowance of $750 to Clara Hanna Auch as the widow of L. Wayne Auch, deceased, and directing the executor to pay the award out of the assets of the estate.

The widow filed her petition claiming her exemption in the sum of $750 under the provisions of the Fiduciaries Act of April 18, 1949, P.L. 512, § 211, 20 P.S. § 320.211: 'The spouse of any decedent dying domiciled in the Commonwealth, and if there be no spouse, or if he has forfeited his rights, then such children as form a part of the decedent's household, may retain or claim as an exemption and as a reasonable requirement for support during the settlement of the estate, either real or personal property, or both, not theretofore sold by the personal representative, to the value of seven hundred and fifty dollars. The surviving husband or wife shall be a competent witness as to all matters pertinent to the issue of forfeiture of the right to the exemption.'

There is no dispute with respect to the pertinent facts of the case. Clara Hanna Auch was married to the decedent on April 14, 1934 and the marriage relationship

[ 174 Pa. Super. Page 408]

    subsisted to the time of the death of the husband on December 14, 1951. The parties lived together as husband and wife until February or March of 1949. A marital abode was established by the parties in 1936 at 7109 Ridge Avenue, Roxborough. About February 26, 1949, Mrs. Auch went on a cruise to Bermuda for two weeks 'for health reasons'. She did not inform her husband about her intention to go on the trip. When she left she took with her only enough clothing for two weeks. She returned to the common domicile of herself and husband about March 11, 1949. Sometime during the period while Mrs. Auch was away on the trip, her husband left their marital abode, taking all of his personal belongings. The furniture and other joint personal property as well as the clothing and personal property of the wife were left there and have remained on the premises. The husband never returned to their home, never visited his wife after he left their home in 1949, and never resided with her at any place thereafter; and it does not appear that he ever offered her a home or invited her to live with him at any other place.

On March 10, 1949, shortly after leaving their home, the husband instituted a suit in divorce against his wife in the Court of Common Pleas No. 6, of Philadelphia County, upon the grounds of indignities to the person and cruel and barbarous treatment. The court found that the husband had not sustained his burden of proof and the complaint was dismissed, and no appeal was taken. On December 4, 1950, pursuant to a petition filed by the wife, the same court entered a decree declaring her to be a feme sole trader. Decedent died December 14, 1951, a resident of Montgomery County. The petition of the widow claiming her exemption was filed February 1, 1952.

[ 174 Pa. Super. Page 409]

The facts clearly show that the family relationship did not exist between the widow and the decedent at the time of his death in 1951 and that the parties had not lived together since the decedent left the marital abode in March, 1949. Accordingly, the question for determination is whether the circumstances of the ...


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