the recognition of the 'position' asserted by the Irish claimant. The investigators' reports go both ways; on the one hand they report hearsay assertions that the claim from overseas is a fraud, and on the other hand some suggest that it might be establishable.
This Court must at least note the fact that the Orphans' Court recognition of a compromise is in no sense an adjudication of the Dunlap claim. The recital of heirship first quoted may or may not rise higher. At any rate, the opinion of the Referee seems strained in its reasoning that the compromise may be considered as the assertion of a 'position' but the heirship recital may not be considered at all.
If inferences must be drawn from the Exhibit 14, no reason is seen why they would not be to the effect that the claimant Sadie is the widow of the wage-earner, and that Samuel is his heir and legitimate son.
It is trite to say that the law favors compromise, and extends privilege to those who choose to buy their peace. No citation is necessary for the proposition that it is unthinkable to recognize in one breath that a compromise is no admission, and then to go on in the next and rest a finding upon the theory that the mere assertion of a claim may support an inference of its validity.
There being no evidence left, in the light of the foregoing analysis, to support the administrative decision, it may seem gratuitous to elaborate the presumptions which favor the claimants. It is necessary to do so, however, since the Referee discussed that subject in his opinion. At his page 6 (Record 17) he writes:
'The referee has given the most serious consideration to the presumption and charity of the law in the Commonwealth of Pennsylvania, which is in favor of the legitimacy of every child. Rosenberger's Estate, 1949, 362 Pa. 153, 65 A.2d 377. However, presumptions cannot prevail in the face of contrary evidence, and the referee must find that the proof that the deceased had no capacity to marry the claimant is clear and direct. * * *
'While there is a presumption that the second marriage was an innocent one, that alone is not sufficient to overcome the previously existing presumption of the continued validity of the first marriage. Madison v. Lewis, 1943, 151 Pa.Super. 138, 30 A.2d 357. * * *'
The cited case was an action of ejectment. The defendant claimed as devisee of an alleged husband of one Lucy. Defendant put in no evidence, resting solely upon the presumption that his marriage was innocent. Plaintiffs, on the other hand, proved to the satisfaction of the court that the alleged husband had in 1891 been duly married to one Sarah, and that a child was born to the husband James and his wife, Sadie. Sadie was still living in New York at the time of trial. There was proof that after James had gone through a form of ceremony with Lucy in 1909 (when Sadie was living), friends remonstrated with him as to the bigamous nature of his second marriage. His only answer was: 'I know what I am doing'; he made no denial or explanation. No children were born of the second marriage.
The Pennsylvania Superior Court held:
'* * * As the case developed on the trial in the court below, the burden, in our opinion, was on the defendant, after the marriage between James Harris and Sadie Jones had been established and the fact that Sadie Harris was still alive had been clearly shown, to go forward with proof tending to show a divorce had been procured * * * He produced no such evidence, nor any evidence at all, preferring to rest on the 'presumption of innocence' which he claimed attended James Harris's marriage to Lucy Cole.' (151 Pa.Super. 138, 30 A.2d 359.)
The same opinion recognizes the established principle that when the presumption of legitimacy is added to that of 'innocence', then the first presumption of the continuance of a status (the first marriage) is outweighed. Madison v. Lewis, 1943, 151 Pa.Super. 138, 143, 30 A.2d 357, citing and discussing In re Wile's Estate, 1897, 6 Pa.Super. 435; Sharpe v. Federal Cleaning Co., 1940, 144 Pa.Super. 231, 238-240, 19 A.2d 509.
It may be immediately noted that the cited Madison case is one in which the presumption as to the legitimacy of children was on the side of the first, rather than the second marriage. Again, the validity of the first marriage was unchallenged, and the existence of the first wife was undeniable. Furthermore, it was shown that the husband, at the time he remarried, was on notice that his later union was invalid if not bigamous.
The present case is infinitely different from the Madison case. Here, the suit is to recover Social Security benefits -- by contrast with an action of ejectment. In the instant case the first marriage has by no means been proved. Even if it were proved, there is here the long lapse of time which aids the presumption in favor of the later marriage.
Again, the presumption of legitimacy here aids rather than opposes the claimants. That particular presumption is by no means a mere recognition of probability, but is rather one of the weightiest expressions of legal policy in the law. In re McAnany's Estate, 1927, 91 Pa.Super. 317, 321. See Bishop, Marriage and Divorce § 457 (6th ed.), quoted in Nixon v. Wichita Land & Cattle Co., 1892, 84 Tex. 408, 19 S.W. 560, 561 and in McCormick on Evidence, § 312, p. 653 (1954). See 9 Wigmore on Evidence, § 2506, p. 371 (3d ed. 1940); Pennsylvania cases collected and compared in annotation. 14 A.L.R.2d 9, 39.
The careful and conscientious opinion of the Referee is thus seen to have been based on evidence which falls far below ordinary standards. It was, moreover, lamentably short of the strict proof required to overcome the policy presumptions of the law as recognized in the Pennsylvania cases, e.g., Fritsche v. O'Neill, 1942, 147 Pa.Super. 153, 161, 24 A.2d 131; Farrell Estate, 1947 35 Del.Co.R. 433. See McCormick on Evidence, 654 (1954).
For the foregoing reasons the defendant's motion for summary judgment is hereby denied, and the decision of the Secretary is reversed. Claimant may submit an appropriate order granting the relief prayed in her complaint.
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