Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Delaware County, No. 656 of 1968, in re estate of Edna N. Wallace, deceased.
Roderick D. Mathewson, for appellant.
Frank T. Hazel, with him Reilly, Pearce, Lynch & O'Malley, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell.
Russell L. Wallace and Edna N. Wallace, the decedent, were married on January 26, 1951. Edna died testate on May 26, 1968. In her will, she made no bequest to her husband, and indeed failed to mention him. Russell thereafter filed an election to take against his wife's will. Edna's executor filed a petition to revoke or vacate the surviving spouse's election, based upon the Wills Act of 1947, P. L. 89, § 9(a), 20 P.S. § 180.9(a). Section 9(a) provides that "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 right of election."*fn1
The lower Court revoked and vacated Russell's election to take against his wife's will. From that Court's Decree, Russell took this appeal.
In 1954, Edna and her husband Russell purchased a home, subject to a mortgage, as tenants by the entireties. It appears from the testimony that the couple experienced marital difficulties almost from the time of their marriage. As early as 1955, Russell refused to speak to his wife and would not eat breakfast or
lunch with her, even though she requested him to do so. Furthermore, on numerous occasions, Russell physically abused his wife. Early in 1964, Edna moved to a separate bedroom, and in April 1965 she left their home and lived separately from her husband until her death.
Russell admits that he failed to provide for his wife for a period of one year and upwards prior to her death. However, he denies that such nonsupport was "wilful neglect or refusal to provide for her" within the meaning of Section 9(a) of the Wills Act of 1947.*fn2
In Banks Estate, 410 Pa. 122, 189 A.2d 154, the Court said (page 125): "The burden of establishing a forfeiture, in the first instance, is upon those who claim such forfeiture (Hudak Estate, 383 Pa. 278, 280, 118 A.2d 577; Jac Estate, 355 Pa. 137, 142, 49 A.2d 360) although the facts in a particular case may shift the burden to the claimant husband or wife to establish that there had been no . . . wilful neglect or refusal to support (Buckley Estate, 348 Pa. 311, 312, 35 A.2d 69)." In addition, it must always be remembered that "forfeitures are not favored in the law and must be strictly construed: United States v. One 1936 Model Ford, 307 U.S. 219, 59 S. Ct. 861; 37 C.J.S., § 4(b), page 8." Zanfino Estate, 375 Pa. 501, 503, 100 A.2d 60.
The appellant husband contends that Jury Estate, 381 Pa. 169, 112 A.2d 634, controls the present factual situation and requires us to reverse the lower Court's Decree. We disagree. In Jury Estate, the husband, ...