Jury Estate

112 A.2d 634, 381 Pa. 169, 1955 Pa. LEXIS 466

• Court: Supreme Court of Pennsylvania
• Decided: March 21, 1955
• Docket: Appeal, 168
• Status: Published

Opinions

Opinion by

Mr. Justice Jones,

During her lifetime, Olive O. Jury, the decedent was known in her home town, Shamokin, Pa., as a spinster. She had lived there in her parental residence and had taught in the public schools. When she died testate at the age of sixty, her only apparent surviving relatives were certain collaterals. By her last will, which she signed “Olive O. Jury”, she devised and bequeathed her residuary estate to her “heirs as provided by the intestate laws of the Commonwealth of Pennsylvania.” The will was duly probated and letters of administration c.t.a. on her estate were granted to a local trust company, the executor named in the will having predeceased the testatrix. A final account filed by the administrator showed a balance for distribution, and the Orphans’ Court appointed an auditor to make distribution among the parties entitled thereto.

At the hearing before the auditor, one Ned Osthaus appeared and claimed to be the decedent’s surviving husband and, therefore, entitled to share in her estate under the dispositive provision of the will. He testified that he and Olive O. Jury were married on July 18, 1931, in Coshocton, Ohio; that no issue was born of the marriage; and that he and his wife were never divorced. He also introduced in corroboration of his testimony an exemplification of the record of his marriage to Olive O. Jury on file in the Record of Marriages in the Probate Court of Stark County, Ohio. The auditor specifically found, and the court below confirmed, that Ned Osthaus is the lawful surviving spouse of the testatrix. Nor do the collateral heirs dispute his status as such. Their contention is that Osthaus wilfully neglected or refused to provide for his wife during a period of more than one year prior to her death and that, consequently, he thereby forfeited his right to share in the distribution of her estate: see Section 6(a) of the Intestate Act of 1947, P.L. 80, 20 PS §1.6(a). As already indicated, Osthans claims under the testatrix’s Avill and not against it. HoAvever, that is of no present importance. Had he elected to take against the will, he would have been met Avith the same objection by the collateral heirs: Section 9 of the Wills Act of 1947, 20 PS §180.9.

The only testimony adduced by the collaterals in support of their contention came from Osthaus, himself, Avho, called as for cross-examination, testified that he took up residence in Akron, Ohio, in 1919 and sometime later met Olive O. Jury who Avas attending summer school sessions at the Western Reserve University; that, during the summer of 1931, when he Avas 41 and Olive 40, they were married; and that they lived together Avhile she attended summer school but never established a common home. Olive continued to live in Shamokin, Avhere she taught school, and Osthaus lived for a time in Akron, later moving to Scranton, Pennsylvania, in order to take care of his aged and invalid mother. The only other periods during which the parties cohabited Avere when Olive was attending further summer school sessions and, on one occasion after the death of Olive’s father, when Osthaus spent “a Aveek or two” Avith her in Shamokin. The last time he saw his Avife was in 1940, but, subsequent to that, there was some correspondence between them. Admittedly, Osthaus contributed nothing to his wife’s support during the tAvo years preceding his wife’s death. For that period, his total income was $22.80 consisting of two dividends amounting to $2.80 on a share of stock and $20 which he received for jury duty. With the exception of his one share of stock, Osthaus owned no other property, either real or personal.

On the basis of the foregoing testimony, the auditor concluded (1) that Osthaus had wilfully failed to support his wife for a period of more than a year prior to her death and (2) that, by signing her will with her maiden name, the testatrix had thereby evidenced an intention to exclude her husband as one of those entitled to take under the intestate law. The auditor accordingly held that Osthaus was not entitled to share in the distribution of his wife’s estate. Following exceptions by Osthaus, the auditor filed a supplemental report in which he reversed himself in part by holding that the collateral heirs had failed to prove Osthaus guilty of wilful nonsupport of his wife but affirmed that he was barred nonetheless from participating in the distribution of his wife’s estate by reason of a testamentary intent to exclude him as a devisee and legatee under her will. Both the collateral heirs and Osthaus filed exceptions to the auditor’s supplemental report. After argument on the exceptions, the court below reversed both of the auditor’s conclusions by holding, first, that there was no basis for concluding that the testatrix had intended by her will to exclude her husband as an heir and, second, that Osthaus’s admitted failure to support his wife raised a presumption that such nonsupport was wilful and, having failed to rebut the presumption, he had forfeited his right to share in his wife’s estate. The court entered a final decree against the husband on the basis of the latter conclusion, and Osthaus brought this appeal.

We agree with the learned court below that there is nothing in the testatrix’s will manifesting an intention to exclude her husband from the designation of “heirs” under the intestate law. Section 14 (4) of the Wills Act of 1947, P.L. 89, 20 PS §180.14 (4), declares that, unless a contrary intention appears in the will, a devise or bequest to heirs shall be held to include the surviving spouse. It is true, tliát, at common law, neither spouse was considered an heir as to the other’s real estate. But, both before and after the Intestate Act of 1917, P.L. 429, which made the surviving spouse a statutory heir of the other, the use of the word “heirs” in a will was uniformly construed to include the surviving spouse if no contrary intent is expressed by the will: Barnard Estate, 351 Pa. 313, 314-315, 41 A. 2d 578. Such having been the established rule when the testatrix executed her will (June 18, 1941) as well as when she died (December 15, 1951), she is legally presumed to have understood and to have used the term “heirs” in accordance with the meaning which the law ascribed to it. This is especially so since, admittedly, the will was professionally drawn. And, where the plain words, of a will clearly disclose the testatrix’s intent, there is no occasion for testamentary construction : see Earle Estate, 369 Pa. 52, 56, 85 A. 2d 90, and cases there cited.

Certainly, no intention to exclude her husband as an heir is to be deduced from the fact that the testatrix executed her will by her maiden name. That was the only name by which she had been known in her locality throughout her lifetime. She had never assumed use of her husband’s surname, and the fact of her marriage had not been generally publicized. No reason appears.of record for the parties’ withholding from the public knowledge of their marriage. Prom all that appears, the marital arrangement was perfectly satisfactory to both. But, however that may be, the decedent’s testamentary intent is clear enough. She devised and bequeathed the residue of - her estate to her heirs as determined by the intestate, law, and her husband qualifies as a.member of that.class...

The question of -law. with .which - we are-, presently concerned-is-whether the court-below-erred in holding that the. husband’-s -nonsupport -of -his wife- for -a .period of -upwards of a year prior- to her ■ death -afforded-, -a presumption, that he had wilfully neglected or refused to provide for her. Section 6 (a) of the Intestate Act of 1947, 20 PS §1.6 (a), which repeats verbatim, in presently material part, the corresponding provision of the Act of 1917, declares 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 title or interest under this act in her real or her personal estate.” No contention is here made that there is a forfeiture because of a wilful and malicious desertion. The sole asserted basis for the forfeiture is the husband’s alleged wilful nonsupport.

The burden is upon the collateral heirs (the ones so asserting) to establish the truth of their allegation that the husband had wilfully neglected or refused to provide for his wife for upwards of a year prior to her death. See Crater Estate, 372 Pa. 458, 460, 93 A. 2d 475; Buckley Estate, 348 Pa. 311, 312, 35 A. 2d 69; McLiesh Estate, 161 Pa. Superior Ct. 292, 295, 54 A. 2d 106; Rudolph’s Estate, 128 Pa. Superior Ct. 459, 462, 464, 194 A. 311; Schreckengost’s Estate, 77 Pa. Superior Ct. 235, 237. That such was the collateral heirs’ burden, they frankly concede in their brief where they state their contention to be as follows: “The Appellees contend that they have met the burden of proving that the neglect or refusal by the appellant to provide for his wife was wilful.”. This contention fairly suggests the issue which a majority of .this court are of the opinion must be answered in the husband’s favor.

Where, as here, the facts are undisputed, an appellate court can competently .draw the appropriate inferr enees and conclusions" from the evidence regardless of the action of the court "below: see Noonan Estate, 361 Pa. 26, 30, 63 A. 2d 80, and" cases there" cited. All that' the collaterals proved was that the husband had not supported his wife for two years prior to her death. Indeed, the fact is that, for the two years prior to his wife’s death, Osthaus, who was then taking care of his aged and invalid mother, was utterly without funds wherewith to contribute to his wife’s support had she desired him to do so. There is nothing in the evidence indicating that there had been a change in the marital arrangement between Osthaus and his wife from what it had been from its inception and which was undoubtedly consensual when begun. Neither of them had evidenced any departure from the course both had pursued from the time of their marriage. They apparently chose to live as they did. Never did they exhibit any intention of establishing a common home; nor did they establish one. Olive returned to her teaching position in Shamokin, which made her self-supporting, and Osthaus continued to live in Akron. There is no basis whatsoever in the testimony for inferring that the arrangement was other than mutually agreeable. A wife can voluntarily relieve her husband of his duty to provide for her support: see Kvist’s Estate, 256 Pa. 30, 36, 100 A. 523. In the absence of proof, it cannot, therefore, be presumed that Osthaus’s failure to support his wife was wilful.

In the instant case, the learned court below very effectively read out of the statute the qualifying adverb, “wilfully”, by imposing upon the husband the burden of going forward with evidence to disprove that his failure to provide for his wife- had been wilful when- all that had been shown was his nonsupport of his-wife. In-construing-the-statute, we-are required to give effect, if possible, to all-of its provisions (Section; 51 of the Statutory- Construction Act • of 1937, -P.L. 1019, 46 PS §551) and to give the words- used their common and ordinary meaning (Section 33 of the Statutory Construction Act, 46 PS §533). While, etymologically, “wilful”, from which the adverb “wilfully” derives, may mean intentional, volitional, deliberate, etc., in common parlance, the word connotes fault, wrongdoing, blameworthiness, etc. Thus, Webster’s New International Dictionary (2nd Ed., 1946) defines “Willful” (or “wilful”) as meaning not only “Self-determined; voluntary; intentional” but also “Governed by will without yielding to reason; obstinate; perverse; stubborn”. That the word “wilful” ordinarily has a broader meaning than intentional or deliberate is evident from the word’s general use in common legal phrases designed to imply conscious fault or culpability, e.g., “wilful misconduct”, “wilful absence”, “wilful omission”, etc. To equate “wilfully”, as used in the statute under consideration, with “intentionally” would be to give no effect whatsoever to the legislature’s use of the term. In short, the result reached by the court below was no different than what it would have been had the statute not employed the word “wilfully”.

The cases cited by the appellees are readily distinguishable. In fact, Buckley Estate, supra, which the court below also relied upon for its ruling that proof of a husband’s nonsupport, without more, affords a presumption of wilfiol neglect and refusal to provide for his wife, impliedly recognized exactly the opposite. In the Buckley case, which was concerned with a husband’s forfeiture of his right to elect to take against his deceased wife’s will because of wilful nonsupport and desertion, the husband had been in the penitentiary for more that a year prior to his wife’s death. However, that period of nonsupport alone was not sufficient to raise a presumption of wilfulness. Thus,- Mr. Justice Stearns pointedly observed for this court that “the incarceration of the husband for a year and upwards might not of itself establish either wilful desertion or nonsupport . . (Emphasis supplied). The opinion elsewhere reveals that the facts which gave rise to a presumption of wilful failure to support were prior incarcerations of the husband in various prisons in Pennsylvania and Ohio over a long period of time, there being no suggestion. of any resumed observance on his part, during intervening periods of freedom, of his liability for his wife’s support. Nor is it to be overlooked that, in the Buckley case, there was a positive testamentary disinheritance of the husband. The testatrix, having made, no provision for her husband, expressly declared that he had lost any right to take against her will.

In Kvist’s Estate, supra, upon which the appellees largely rely, the husband and wife had a common abode for a year or so following their marriage while in the domestic service of the same family, he as a butler and she as a cook. Being unable to secure further suitable employment together, they took positions in different places. Having thus separated, they never again lived together except for one brief period a few years later. Eight years thereafter the wife died. During the time of the separation, the husband made no contribution to his wife’s support although the evidence showed that she was frequently in needy circumstances and he had an income until the date of her death. The trial court deemed significant to the question of wilfulness, as indeed it was, the fact that, when they ceased to have a common home, the husband cast his wife among strangers. There is no such evidence in the instant case. Osthaus and his wife lived until her death just as they had from the inception of their marital relationship.

What Avas said in Rudolph’s Estate, supra, is peculiarly apposite here. In reversing a decree which forfeited a husband’s right to inherit from his wife because of his alleged nonsupport, the Superior Court said, — “Even if the [husband] had not worked, and even if he had been intemperate, such would not be controlling, nor would proof of such facts alone bar him from the share of his wife’s estate allotted to him under the law. [His] employment during the last year of his married life may have been irregular; his income may have been very meager; he may have been unable to find steady work; he may have been intemperate; nevertheless, his marital rights would not be affected unless the contesting claimants established that he had wilfully refused or neglected to support her at least during the year prior to her death. This they completely failed to do . . .

The decree is reversed and the record remanded with directions that a decree of distribution be entered in accordance with this opinion; the costs to be borne by the estate.