Shaw's Estate , 54 Pa. Super. 444 ( 1913 )

Opinion by

Morrison, J.,

Ann J. H. Shaw was married to the appellant in October, 1909, and she died from the effects of a cancer on September 18, 1911. On September 2,1911, she made her last will and testament, item 10 of which reads as follows: “To my husband, William Shaw, I will, devise, etc., the sum of $1.00 (One dollar) as his sole share in my estate. On account of his dissipation and failure to support me, I do not wish any of my estate to go to him, other than the sum of $1.00 as before mentioned.”

The testimony shows that the decedent had been an unusually industrious and economical woman and that prior to her marriage to the appellant she had accumulated in the Dollar Savings Bank of Pittsburg several thousand dollars in money. After her decease the appellant gave notice that he elected to take against her will and he first claimed one-half of the estate and subsequently gave notice that he claimed the whole of the estate under the Act of April 1, 1909, P. L. 87, because she died leaving to survive her a husband and collateral heirs only.

The whole question involved in this appeal is the soundness of the conclusion and decree of the court below, in substance, that William Shaw, husband of Ann J. H. Shaw, deceased, had for one year and upwards previous to the death of his wife, willfully neglected and refused to provide for her and therefore forfeited any and all interest that he otherwise would have been entitled to in her estate, except the $1.00 mentioned in her will: Act of May 4, 1855, P. L. 430. Section 2 of that act reads: “That whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the Act of the twenty-second of February, one thousand seven hundred and eighteen, entitled, ‘An Act concerning feme sole traders,’ and be subject as therein provided, and her property, real and personal, howsoever acquired, shall be subject to her full and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin, as if he were previously dead.

“Section 5. That no husband who shall have as aforesaid, for one year or upwards previous to the death of his wife, wilfully neglected or refused to provide for his wife, or shall have for that period or upwards wilfully and maliciously deserted her, shall have the right to claim any right or title in her real or personal estate after her decease, as tenant by the courtesy, or under the intestate laws of this commonwealth.”

It is not contended that the appellant had deserted his wife but the objection to his claim to her estate was put upon the ground of his drunkenness and neglect and refusal to provide for his wife for the last year and upwards of her life.

The hearing and adjudication in the distribution of the decedent’s estate was before the late Judge Hawkins, and a large number of witnesses were sworn and examined in his presence and, as is usual in such cases, there was considerable conflict in the testimony. We have read all of it carefully, however, and have given due consideration to the argument of the learned counsel and the authorities cited by them. This is one of the cases where the auditing judge sees the witnesses and hears them testify, and, therefore, he had a much better opportunity of judging of their credibility and the value of their testimony than the appellate court can have from the printed record. Our examination of the case has not convinced us of error or abuse of discretion sufficient to call for a reversal of the decree of distribution. We think there is sufficient evidence to warrant the learned judge’s finding that the appellant had, within the meaning of the act of 1855, neglected and refused to provide for his wife as the law required him to do. In our opinion the testimony indicates that if the decedent had not been industrious and economical so that she was provided with a considerable sum of money before she married the appellant, it is highly probable that after such marriage and her affliction with a cancer she would have become a public charge.

The six judges who heard the argument of this case concur in the view that the decree ought to be affirmed.

The assignments of error are all dismissed, and the decree is affirmed at the cost of William Shaw, appellant.