Appeal, No. 53, Jan. T., 1963, from decree of Orphans' Court of Delaware County, No. 903 of 1961, in re estate of Anna Elizabeth Banks, also known as Anna E. Dudley, deceased. Decree affirmed.
Robert A. Wright, for appellant.
Paul C. VanDyke, with him Cochrane and VanDyke, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal raises the question whether, under the factual situation presented, a husband, by wilful and malicious desertion or by wilful neglect or refusal to support, had forfeited his right to elect to take against the will of his deceased wife?
Sometime in 1924 Anna E. Dudley (decedent) and Samuel H. Dudley (Dudley) were married and thereafter lived together at 1207 West Second Street, Chester, Pa. until sometime in 1929. In 1929 the parties began living separate and apart; on behalf of the decedent's estate it is contended that this separation occurred because of Dudley's ill treatment of decedent while Dudley contends that the separation occurred when, as the result of an argument between the parties because of some other woman, decedent left the matrimonial domicile. It is undisputed that from 1929 until the decedent's death on November 7, 1961 the parties never lived together again. After the separation, decedent went to live at 1617 West Third Street, Chester; after remaining a short period of time in the matrimonial domicile, Dudley went to live with one Florence Johnson at 188 Norris Street, Chester. Sometime in 1930 or 1931 the decedent entered into an "informal relationship" with one John Banks and thereafter used the name "Anna Elizabeth Banks" as well as "Anna E. Dudley".
Decedent, both during the time she lived with Dudley and thereafter during most of her life, worked regularly and in 1940 she purchased the property at 1617 West Third Street wherein she lived with her sister,
Mrs. Phillips, her brother, John Purgeon, and John Banks. The taxes on the property were paid by John Purgeon and both Mrs. Phillips and John Purgeon aided decedent in the upkeep and repair of the property.
In April, 1952 decedent made a will wherein she stated, inter alia: "FIFTH: In providing aforesaid, I am not unmindful of Samuel H. Dudley, with whom I entered into a contract marriage and who permanently deserted and abandoned me more than twenty years ago while I was residing in my home aforesaid, and who continuously since said time has neither cohabited with me nor supported me nor tendered to me any support whatsoever. Under such circumstances my attorneys advise me that the said Samuel H. Dudley is legally incapable of taking against this will and it is my express wish that he take nothing hereunder".
Shortly after decedent's death, Dudley filed an election to take against her will. Mrs. Phillips, decedent's sister and executor, then filed a petition in the Orphans' Court of Delaware County to vacate and set aside the election of Dudley on the ground that he had forfeited his right to an election under the Wills Act of April 24, 1947, P.L. 89, § 9(a), 20 PS § 180.9. After answer filed by Dudley, a hearing was held before the Honorable E. L. VAN RODEN who held that Dudley by reason of both wilful and malicious ...