Wile's Estate

• Decision Date: 19 February 1898
• Docket Number: 82-1897
• Citation: 6 Pa.Super. 435
• Parties: Wile's Estate. Rump's Appeal
• Court: Pennsylvania Superior Court

6 Pa.Super. 435

Wile's Estate. Rump's Appeal

No. 82-1897

Superior Court of Pennsylvania

February 19, 1898

Argued October 13, 1897 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by Almira E. Rump, Julia McKnight and Michael Shetzline from decree of O. C. Phila. Co.-1881, No. 168, in the matter of the estate of George Wile, deceased.

Adjudication of trustees' account. Before Ferguson, auditing judge.

It appears from the record and evidence that the question arose at the audit of the estate of George Wile upon the filing of the account of testamentary trustees.

The guardian of John Shetzline, Jr., the grandson of the testator, claimed as distributee under the limitations during the continuation of a trust to issue of testator's children, Ferguson, auditing judge, finding that the minor's mother had been married to Benjamin Andrews prior to her marriage to the child's father, and that her first husband was living at the time of her second marriage, holding that the marriage was void and that the child being illegitimate could not share as issue of his father in the distribution. This finding he reaffirmed on a rehearing which had been granted " to enable the guardian to prove her claim." Exceptions on behalf of the guardian of John Shetzline, Jr., were filed alleging error, In placing the burden of proof on said minor; In finding that there was no evidence that Benjamin F. Andrews and Elizabeth Andrews were divorced; In not finding that the said minor was entitled to all presumptions existing at the time of his birth; In not awarding the fund to the guardian of said minor.

The court in banc sustained the above exceptions in an opinion by Penrose, J., in which the material facts of the case fully appear, and which is as follows:

That the parents of the child, whose right as one of the distributees is now denied, were regularly married in 1884, a year or more before his birth; that, in the relation thus established, they lived happily until the husband's death in 1891; and that during the entire period of seven years or more his father, brother and sisters were on terms of intimacy and friendship with his family, with no suggestion that his marriage was not a valid one, are facts clearly established by the evidence, and, practically, not in dispute. As grandchild he was entitled, while he lived, to one twentieth of the income of the estate of the testator; and the share which he had received was continued, for more than two years, to his child's guardian, under the limitation during the continuance of the trust to " issue."

The boy, a helpless cripple, now about ten years old, seems to have been the object of especial tenderness on the part of his father, who, on his death-bed, expressed great anxiety as to his future welfare, fearing, as he said, " lest some wrong might at any time be done to his little crippled boy." His mind was relieved by the assurance of a sister that this should never be; but it is this sister who now alleges that her brother's marriage was invalid, and seeks on this ground, not only to exclude his boy from further participation in the grandfather's estate, but to blight his entire life by stigmatizing him as illegitimate -- though her share of what he would thus be deprived of, during a period of two years, is shown by the adjudication to be but $ 60.62. The auditing judge, in commenting on this has well said: " We have often illustrated in this court some of the best features of human nature. We have also some of the worst. This is one of the worst." Avarice, however, is apt to yield to just such temptations; and, as we know, thirty pieces of silver (just half the amount sought for here) were sufficient to induce the grossest act of perfidy recorded in the history of the human race.

It appears that in 1866 the boy's mother was married to a man who deserted her in 1872, after having treated her with great brutality and after repeatedly declaring that she was not his wife. He disappeared from the city, and she was told that he was dead; but it was not until 1884, after an interval nearly twice as long as that required to create a presumption of death, that she contracted a second marriage -- never, in the meanwhile, having heard of, or had any communication with him. But he was not dead; and a year or two after the birth of the child whose legitimacy is now attacked, he appeared again in Philadelphia, thus putting an end, of course, to the presumption of death arising from his long continued absence.

If the case rested here, there could be no escape from the conclusion that the second marriage of the wife, notwithstanding the good faith with which it was contracted, was void ab initio. But it was shown that two or three years after his desertion, the supposed first husband married another woman, with whom, as his wife, he has ever since lived and cohabited; and as he would otherwise be guilty of bigamy, it is to be presumed either that he spoke truthfully when he asserted that the marriage of 1866 was, for some undisclosed reason, void, or that after his desertion and before his remarriage, he obtained a divorce. A divorce so procured, even if service were not effected upon the opposite party, would be voidable only, not void; and after the remarriage of both parties both would be bound by it (see Richardson's Estate, 132 Pa. 292; Pennoyer v. Neff, 95 U.S. 714; Bishop on Marriage and Divorce, secs. 163, 199). It is stated in Best on Evidence, sec. 346, that " it is a presumptio juris, running through the whole law of England, that no person shall, in the absence of criminative evidence, be supposed to have committed any violation of the criminal law, . . . or to have committed any act subjecting him to any species of punishment, . . . . and this holds in all proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally." And " so strong is this presumption," it is said by Professor Greenleaf (Evidence, sec. 35), " that even where the guilt can be established only by proving a negative, the negative must, in most cases, be proved by the party alleging the guilt; though the general rule of law devolves the burden of proof on the party holding the affirmative." Illustrations of these principles are furnished by Rex v. The Inhabitants of Twyning, 2 B. & Ald. 386; Case v. Case, 17 Cal. 598; West v. The State, 1 Wis. 186; Williams v. The East India Company, 3 East, 193, etc.

But where the question not only involves the commission of crime by third persons, but relates also to the legitimacy of one born in wedlock, and especially where the legitimacy was not questioned until after the death of the parent through whom property is claimed, presumptions of this character are greatly strengthened. " The presumption and charity of the law," as was said by the Supreme Court of Illinois in Orthwein v. Thomas, 127 Ill. 554, are in favor of the legitimacy of the child, " and those who wish to bastardize him must make out the fact by clear and irrefragable proof. The presumption of law is not lightly repelled; it is not to be lightly broken in upon or shaken by a mere balance of probabilities; the evidence for repelling it must be strong, satisfactory and conclusive." And in Piers v. Piers, 2 H.L. Cas. 331, it is said that the presumption " can only be negatived by disproving every reasonable possibility." See also DeThoren v. The Attorney General, L. R. 1 App. Cas. 686.

The precise question has been decided by the court of last resort in at least two states of the Union (Blanchard v. Lambert, 43 Iowa, 328; Carroll v. Carroll, 20 Texas, 731); and as the decisions are fully justified by the principles to which we have referred, we have no hesitation in following them.

The second, fifth, seventh, tenth and eleventh exceptions to the readjudication are sustained, and the distribution awarded accordingly.

Counsel will prepare the necessary decree.

Errors assigned among others were In sustaining appellee's exceptions; In finding that there was a presumption of a divorce of the child's mother from her former husband; In giving said presumption of divorce the full force of an established fact; In finding that John Shetzline, Jr. was a legitimate son of John Shetzline, Sr.

Frederick J. Knaus, for appellants. -- If a woman has a lawful husband alive and undivorced at the time of her second marriage, no matter how long he may be absent or unheard of, the second marriage is void: Clark's Appeal, 173 Pa. 451. Kenley v. Kenley, 2 Yeates, 207; Thomas v. Thomas, 124 Pa. 646.

It was error in the court in banc not to have sent the matter back to the auditing judge to permit the hearing to be completed by permitting the appellants to submit evidence in support of their side of the case. The proceeding was analogous to a nonsuit in a common law action, and no one will pretend that when a nonsuit is taken off the defendant has not the right to a venire de novo, to have his side heard. This point was raised in Wharton v. Williamson, 13 Pa. 273.

Albert D. Wilson, for appellee. -- The court in banc inferred an additional fact, namely, a divorce by Benjamin Andrews from his wife. " Legal presumptions lie thickly strewn in the pathway of evidence. A state of facts being proved the law makes its own inference and from it pronounces that another fact must have existed:" Kisterback's Appeal, 51 Pa. 483. When presumptions are in conflict that prevails which favors innocence. It is presumed every one has conformed to the law.

The findings of fact by the orphans' court will not be disturbed: Coulston's Estate, 161 Pa. 151; McConnell's Appeal, 97 Pa. 31.

Before Rice, P. J., Wickham, Beaver, Orlady, Smith and Porter, JJ.

OPINION

RICE, J.

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