Appeal, No. 168, Jan. T., 1954, from decree of Orphans' Court of Northumberland County, Feb. T., 1952, No. 1, in Estate of Olive O. Jury. Decree reversed; reargument refused April 12, 1955.
Richard Henry Klein, with him Robert McK. Glass, for appellant.
W. Irvine Wiest, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
During her lifetime, Olive O. Jury, the decedent was known in her home town, Shamokin, Pa., as a spinster. She had lived there in her parental residence and had taught in the public schools. When she died testate at the age of sixty, her only apparent surviving relatives were certain collaterals. By her last will, which she signed "Olive O. Jury", she devised and bequeathed her residuary estate to her "heirs as provided by the intestate laws of the Commonwealth of Pennsylvania." The will was duly probated and letters of administration c.t.a. on her estate were granted to a local trust company, the executor named in the will having predeceased the testatrix. A final account filed by the administrator showed a balance for distribution, and the Orphans' Court appointed an auditor to make distribution among the parties entitled thereto.
At the hearing before the auditor, one Ned Osthaus appeared and claimed to be the decedent's surviving husband and, therefore, entitled to share in her estate under the dispositive provision of the will. He testified that he and Olive O. Jury were married on July 18, 1931, in Coshocton, Ohio; that no issue was born of the marriage; and that he and his wife were never divorced. He also introduced in corroboration of his testimony an exemplification of the record of his marriage to Olive O. Jury on file in the Record of Marriages in the Probate Court of Stark County, Ohio. The auditor specifically found, and the court below confirmed, that Ned Osthaus is the lawful surviving spouse of the testatrix. Nor do the collateral heirs dispute his status as such. Their contention is that Osthaus wilfully neglected or refused to provide for his wife during a period of more than one year prior to her death and that, consequently, he thereby forfeited his right to share in the distribution of her estate: see
Section 6(a) of the Intestate Act of 1947, P.L. 80, 20 PS § 1.6(a). As already indicated, Osthaus claims under the testatrix's will and not against it. However, that is of no present importance. Had he elected to take against the will, he would have been met with the same objection by the collateral heirs: Section 9 of the Wills Act of 1947, 20 PS § 180.9.
The only testimony adduced by the collaterals in support of their contention came from Osthaus, himself, who, called as for cross-examination, testified that he took up residence in Alkron, Ohio, in 1919 and sometime later met Olive O. Jury who was attending summer school sessions at the Western Reserve University; that, during the summer of 1931, when he was 41 and Olive 40, they were married; and that they lived together while she attended summer school but never established a common home. Olive continued to live in Shamokin, where she taught school, and Osthaus lived for a time in Akron, later moving to Scranton, Pennsylvania, in order to take care of his aged and invalid mother. The only other periods during which the parties cohabited were when Olive was attending further summer school sessions and, on one occasion after the death of Olive's father, when Osthaus spent "a week or two" with her in Shamokin. The last time he saw his wife was in 1940, but, subsequent to that, there was some correspondence between them. Admittedly, Osthaus contributed nothing to his wife's support during the two years preceding his wife's death. For that period, his total income was $22.80 consisting of two dividends amounting to $2.80 on a share of stock and $20 which he received for jury duty. With the exception of his one share of stock, Osthaus owned no other property, either real or personal.
On the basis of the foregoing testimony, the auditor concluded (1) that Osthus had wilfully failed to support
his wife for a period of more than a year prior to her death and (2) that, by signing her will with her maiden name, the testatrix had thereby evidenced an intention to exclude her husband as one of those entitled to take under the intestate law. The auditor accordingly held that Osthaus was not entitled to share in the distribution of his wife's estate. Following exceptions by Osthaus, the auditor filed a supplemental report in which he reversed himself in part by holding that the collateral heirs had failed to prove Osthaus guilty of wilful nonsupport of his wife but affirmed that he was barred nonetheless from participating in the distribution of his wife's estate by reason of a testamentary intent to exclude him as a devisee and legatee under her will. Both the collateral heirs and Osthaus filed exceptions to the auditor's supplemental report. After argument on the exceptions, the court below reversed both of the auditor's conclusions by holding, first, that there was no basis for concluding that the testatrix had intended by her will to exclude her husband as an heir and, second, that Osthaus's admitted failure to support his wife raised a presumption that such nonsupport was wilful and, having failed to rebut the presumption, he had forfeited his right to share in his wife's estate. The court entered a final decree against the husband on the basis of the latter conclusion, and Osthaus brought this appeal.
We agree with the learned court below that there is nothing in the testatrix's will manifesting an intention to exclude her husband from the designation of "heirs" under the intestate law. Section 14(4) of the Wills Act of 1947, P.L. 89, 20 PS § 180.14(4), declares that, unless a contrary intention appears in the will, a devise or bequest to heirs shall be held to include the surviving spouse. It is true that, at common law, neither spouse was considered an heir as to the other's
real estate. But, both before and after the Intestate Act of 1917, P.L. 429, which made the surviving spouse a statutory heir of the other, the use of the word "heirs" in a will was uniformly construed to include the surviving spouse if no contrary intent is expressed by the will: Barnard Estate, 351 Pa. 313, 314-315, 41 A.2d 578. Such having been the established rule when the testatrix executed her will (June 18, 1941) as well as when she died (December 15, 1951), she is legally presumed to have understood and to have used the term "heirs" in accordance with the meaning which the law ascribed to it. This is especially so since, admittedly, the will was professionally drawn. And, where the plain words of a will clearly disclose the testatrix's intent, there is no occasion for testamentary construction: see Earle Estate, 369 Pa. 52, 56, 85 A.2d 90, and cases there cited.
Certainly, no intention to exclude her husband as an heir is to be deduced from the fact that the testatrix executed her will by her maiden name. That was the only name by which she had been known in her locality throughout her lifetime. She had never assumed use of her husband's surname, and the fact of her marriage had not been generally publicized. No reason appears of record for the parties' withholding from the public knowledge of their marriage. From all that appears, the marital arrangement was perfectly satisfactory to both. But, however that may be, the decedent's testamentary intent is clear enough. She devised and bequeathed the residue of her estate to her heirs as determined by the intestate law, and her husband qualifies as a member of that class.
The question of law with which we are presently concerned is whether the court below erred in holding that the husband's nonsupport of his wife for a period of ...