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HUDAK ESTATE. (11/28/55)

November 28, 1955

HUDAK ESTATE.


Appeal, No. 120, March T., 1955, from decree of Orphans' Court of Allegheny County, 1952, No. 6288, in re Estate of Anna Hudak, Dec'd. Decree affirmed.

COUNSEL

Louis H. Artuso, with him John M. Walker, and G. Harold Watkins, for appellant.

Solis Horwitz, with him Daniel Krause, and Boreman, Parker, Krause & Horwitz, for appellees.

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

[ 383 Pa. Page 286]

OPINION PER CURIAM

The decree of the court below is affirmed on the opinion of Judge RAHAUSER. Costs to be paid by appellant.

[ 383 Pa. Page 287]

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

At the age of 17, Michael Hudak entered the coal mines in Pottsville, Pennsylvania, and since then has known scarcely any occupation other than that of toiling in the subterranean depths of the earth, extracting the "black diamonds" which America for many decades has worn in the diadem of her economic wealth. In 1939, 28 years after descending for the first time into the deep caverns, Hudak encountered the fate which hangs like a black cloud over every coal miner's destiny. Since then he has been permanently disabled.

On November 30, 1952, his wife died, entitling him, under the intestate laws to the major portion of her estate. The Orphans Court of Allegheny County has decreed that he shall not participate in the estate and has awarded all of it to collateral heirs, citing as authority Sec. 6(a) of the Intestate Act of 1947 (20 P.S. Sec. 1.6) which reads: "Forfeiture. (a) Husband's share. A husband who, for one year or upwards, previous to the death of his wife, shall have wilfully neglected or refused to provide for her, or who for that period or upwards shall have wilfully and maliciously deserted her, shall have no title or interest under this act in her real or personal estate."

The majority of this Court has affirmed the decision of the lower Court and has adopted its opinion disposing of the case. I have a high regard for the writer of that opinion and regret that I must disagree with his view that one who is totally and permanently disabled can be regarded as having "wilfully neglected or refused to provide"*fn* for his wife. Nor can I agree that whatever Michael Hudak did prior to 1943 shall be accepted as conclusive proof of his intentions in 1951, a year prior to his spouse's death. To project into the

[ 383 Pa. Page 288]

    future a wilful intent which Father Time has already shovelled into the grave of the past is to formulate a species of ex post factoism in reverse. Moreover, there is evidence that the ...


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