Kerwin Estate

89 A.2d 332, 371 Pa. 147, 1952 Pa. LEXIS 409

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 1952
• Docket: Appeals, 10, 11 and 34
• Status: Published

Opinions

Opinion by

Mr. Justice Chidsey,

The appeals in this case are from the final decree of the Orphans’ Court of Allegheny County, sitting en banc, which affirmed the auditing judge in awarding to appellees in equal shares the balance for distribution in the Estate of Sarah F. Kerwin, deceased. Catherine E. Snyder and William E. Kerwin, appellees, claimed the balance for distribution as niece and nephew respectively of the decedent. Appellants Mary MeGlinchey and Joseph McRory claimed the same as first cousins challenging the legitimacy of appellees as children of decedent’s deceased brother, John Kerwin. Appellant Vincentian'Home for Incurables claimed a portion of the personal estate under a parol trust alleged to have been created during the decedent’s lifetime.

The opinion of the auditing judge fairly states the evidence presented on behalf of Catherine Snyder and William Kerwin, on one hand, and Joseph McRory and Mary McGlinchey on the other. We therefore adopt his exhaustive summary which is as follows:

“Sarah F. Kerwin, or Sadie Kerwin, the decedent, died unmarried, intestate, and without issue on December 9, 3948. She was the daughter of John Kerwin, who died in 1872, and Isabella Kerwin, who died on March 3, 1911. The decedent, Sarah P. Kerwin, had two brothers — John C. Kerwin, Jr., who died on December 16, 1897, and William, who died, unmarried and without issue, on April 23, 1925. John C. Kerwin, Jr., who died in 1897, left surviving him an alleged widow, Mary Eisenberg Kerwin, who died in 1945, and two children — Catherine E. Snyder, nee Kerwin, and William E. Kerwin, who are both living and are claimants in this proceeding. Por many years John C. Kerwin, Jr., with Ms parents and brother and sister, resided on Sampson or Sampsonia Street in what was formerly called Allegheny, now part of Pittsburgh. Old city directories show that ‘John Kerwin’ lived at 35 Sampson Street, Allegheny, from 1893 through 1897. John C. Kerwin, Jr., hereafter referred to as John Kerwin, courted Mary Eisenberg prior to 1895. Mary Eisenberg resided with her parents at that time on Jefferson Street in Allegheny, now Pittsburgh. Jefferson Street, where the Eisenbergs lived, and Sampson or Sampsonia Street, where the Kerwins lived, are in the same neighborhood. Racial and religious differences between the Kerwin and Eisenberg families caused objections to the proposed marriage of John and Mary. In the latter part of 1895 these two young people came to the home of Mr. and Mrs. Millard R. McQuaid on Spring Garden Avenue, on the North Side, Pittsburgh, and John Kerwin told Mrs. McQuaid that ‘. . . they was going to go over and do it up right, and asked me (Mrs. McQuaid) if they could stay at our place until they got settled . . . said they was . . . going to get married . . John Kerwin and Mary Eisenberg then went away for about a week, after which time they returned to the McQuaid home. When they came back to the McQuaid residence they told the McQuaids they were married and they lived with the McQuaids for five or six months. After John Kerwin and Mary Eisenberg went away to get married, and returned, they went to the Eisenberg home where they told her brother, John W. Eisenberg, and her mother that they had gotten married. After living with the McQuaids for five or six months, John and Mary went to live in the district known as Woods Run, or Manchester, on the North Side Pittsburgh. A child, John Charles Kerwin, was born to John and Mary Kerwin on July 17, 1898. The birth certificate issued by the City of Pittsburgh, in evidence as Exhibit ‘A’, shows the name of the father of the child as John Chas. Kerwin and the mother’s name as Mary Kerwin. It also shows that the child was born at ‘6 Woods Run Street, 11 Ward.’ Mr. and Mrs. McQuaid testified that, at the request of John and Mary Kerwin, they went to their home in Woods Run, or Manchester, and took the baby to church, had him baptized, and brought him back to his home. John Kerwin, the child’s father, attended the baptism. This testimony is corroborated by a Certificate of Baptism, in evidence as Exhibit ‘B’, issued by St. Francis Xavier Church, North Side, Pittsburgh, Pa., showing the baptism on December 20, 1896, of John Kerwin, who was born July 17, 1896. This certificate shows the name of the child’s father as ‘John Kerwin’ and the ‘Name of the Mother (Before Marriage)’ as ‘Mary Eisenberger’. This child, whose name is shown on the death certificate as ‘John Kir wins’, died on July 2, 1899, and the death certificate issued by the City of Pittsburgh, in evidence as Exhibit ‘O’, lists the name of his father as ‘John’ and his mother as ‘Mary’. The testimony establishes that Catherine E. Kerwin was born August 13, 1893. John Kerwin recognized her as his child and she was known in the community where John and Mary Kerwin lived as their child. The testimony is that John Kerwin and Mary Eisenberg went away to get married in the latter part of 1895. John Kerwin, the father of the claimants, was killed in a railroad accident on December 16, 1897, about two years after he and Mary Eisenberg told the McQuaids that they had been married. Thus the period in which they could have established a reputation of being husband and wife lasted only for two years and expired about fifty-two years prior to the hearings in this case. William E. Kerwin, one of the claimants in this case, was born three months after the death of his father, John Kerwin. Several disinterested, credible witnesses who lived in the same neighborhood as John Kerwin and Mary Eisenberg testified that, prior to the death of John in 1897, he and Mary had the reputation in the community and among their neighbors of being husband and wife; that Mary Eisenberg was known as Mrs. John Kerwin and that Mary’s children were known by the name of Kerwin. On July 23, 1919, the Eisenberg homestead at 206 East Jefferson Street, Pittsburgh, Pa., was sold. One of the heirs signing the deed of conveyance is Mary Kerwin, identified in the testimony as the widow of John Kerwin. ' Mary Eisenberg was known as Mary Kerwin, widow of John, from the date of death of John Kerwin (1897) until her own death in 1945. The certified copy of the 1900 United States census, in evidence as Exhibit ‘X’, listed her as Mary Kerwin and showed that she was a widow who had been married for three years and was the mother of three children, two of whom were living. The two children were listed on the said census records as ‘Kate’ and ‘William’ Kerwin. They always used the surname Kerwin. At the time of the 1900 census Mary Kerwin and her living children, Catherine and William, were living at the home of her father, Christ Eisenberg at 206 East Jefferson Street, Pittsburgh, Pa. There is no testimony that the claimants were ever known by the name Eisenberg. There is some evidence that John Kerwin and Mary Eisenberg did not live together in a continuing marital relationship. The directories for the City of Pittsburgh indicate that he lived at 35 Sampson St., Allegheny, from 1893 through 1897. Miss Ella Mangan, a neighbor of John Kerwin, stated that she never missed him from Sampsonia Street, and that he was not reputed to be married to Mary Eisenberg, and that he was buried from his mother’s home on Sampson Street.¹ The records of the Coroner of Allegheny County, in connection with the accidental death of John Kerwin, contain an affidavit made on December 17, 1897, by William Kerwin, a brother of John Kerwin, which states that the said John Kerwin was single at the time of his death. The application for letters of administration on the estate of John Kerwin, executed by his sister, Sarah F. Kerwin, on December 21, 1897, shows that ‘the said decedent left the following named widow or husband, heirs and next of kin, to wit: Isabella Kerwin, mother, William Kerwin, brother, and Sarah F. Kerwin, sister.’ This application is a record of the Register’s Office of Allegheny County, Pa., at No. 711 of 1897. There is no record of administration or distribution in the said estate of John Kerwin. The 1900 census record, Exhibit ‘K’, hereinbefore referred to, lists ‘Kate Kerwin’ and ‘William Kenvin’ as ‘niece’ and ‘nephew’ of Christ Eisenberg (Mary Kerwin’s father) rather than as his grandchildren, as they should have been listed if they were held out as Mary Kerwin’s children by her family. The record of the Register of Wilis of Allegheny County, in connection with the probate of the will of Christ Eisenberg on July 24, 1905, contains an affidavit by Katharina Eisenberg, Mary Kerwin’s mother, naming the children of the decedent; she names her daughter as Mary Eisenberg, although she names other married daughters by their married names.”

Appellants vigorously contend that appellees did not produce sufficient evidence to establish kinship. We disagree. Under the facts as found by the auditing judge, appellees presented sufficient proof that they were the daughter and son of John Kerwin. The testimony by numerous witnesses that John Kerwin recognized Catherine as his daughter, the census which shows that Mary Kerwin was a widow and the mother of three children two of whom were living and known as Kate and William, and the baptismal certificate for John and other evidence support the conclusion of kinship reached by the auditing judge.

The chief complaint of the appellant cousins is that the burden was placed upon them of proving that a common law marriage did not exist between the alleged parents of Catherine and William Kerwin. We are of the opinion that the reasoning of the court in Mays’ Estate, 141 Pa. Superior Ct. 479, 15 A. 2d 569 (allocatur refused) which we approve and adopt, rules this case. In that case President Judge Rhodes discussed at great length the effect of the presumption of legitimacy and rejected the contention of the appellants here. The court there said, at p. 484: “Appellee’s kinship to decedent having thus been shown, it was not incumbent upon him to go further to prove his legitimacy; it was for the appellants to disprove it, and that by proof that was clear, direct, satisfactory, and irrefragable. (Pickens’ Estate, supra; McAnany’s Estate, 91 Pa. Superior Ct. 817).” The court continues, p. 486: “It thereby appears that the presumption of legitimacy is in reality the presumption of the fact and of the validity of the marriage of the child’s parents, once parentage is established.” In meeting the very point raised by the appellants here the Superior Court said, p. 487: “The effect of the presumption of the present appellee’s legitimacy was, therefore, to place upon appellants the burden of disproof of the marriage of his mother and the decedent.” (Emphasis supplied).

Appellants’ able counsel attempts to distinguish Mays’ Estate, supra, on the grounds that the claimants in that case produced a baptismal record and that here appellees did not (even though they did produce a baptismal record for their alleged deceased brother). A baptismal record or certificate certainly is valid and important proof of kinship but, in our opinion, not of itself determinative whether or not the presumption of legitimacy arises. The presumption of legitimacy becomes operative upon the proof of kinship whether such kinship is proved by a baptismal certificate, by the testimony of one who was present at the birth or, as in this case, by circumstantial evidence which satisfies the auditing judge.

For the position taken by them appellants rely upon Craig’s Estate, 273 Pa. 530, 117 A. 221. That case contains these peculiar facts. The claimant and her mother previously made a claim against the estate, alleging that they were child and widow of the deceased. This claim was compromised: 'The master to whom the claim in Craig’s Estate was referred found that the claimant was not a legitimate child of the deceased and that there was a legal compromise of the claim of the alleged widow and child. The mother, since she was not making a claim in this action, was permitted to testify. The Court reviewed her testimony and decided that it, together with other evidence, affirmatively disproved a common law marriage. In discussing the presumption of legitimacy this Court did say, “The question is not as to the paternity of appellant. That is conceded. Counsel for appellant argues the question here is one of legitimacy and that the burden is on respondent to overcome the presumption of legitimacy by clear and satisfactory facts. In this case, however, the question of legitimacy depends solely upon whether a valid marriage existed between the parents of the child and the proof of this fact must measure up to the standard applied in such eases.” It must be remembered that in Craig’s Estate the person claiming to be the common law wife of the decedent testified in support of her daughter. The master thus had available a witness whose testimony had a direct bearing on whether or not a common law marriage had been consummated, which evidence, in turn, affected the question of legitimacy. In the instant case both parties to the alleged marriage are dead. The only evidence available is circumstantial. Kinship has been adequately established. Under such circumstances the holding in Mays’ Estate, supra, is the correct rule to be applied rather than the above language in Craig’s Estate.

In distinguishing Craig’s Estate, and other cases, the Court in Mays’ Estate said (quoting more fully from p. 487) : “The effect of the presumption of the present appellee’s legitimacy was, therefore, to place upon appellants the burden of disproof of the marriage of his mother and the decedent. This burden they might have met in such a conclusive manner as to require appellee to rebut proof of Ms illegitimacy by any means at his command. This will, upon examination, be found to be the situation in which falls every case cited by appellees having to do with legitimacy of children rather than marriage merely.” (Emphasis supplied). In the present case the lower court found, and in our opinion justifiably, that appellants did not sufficiently meet the burden of overcoming the presumption of appellees’ legitimacy.

It is true that some of the language in Wharton’s Estate, 218 Pa. 296, 67 A. 414, and Fuller’s Estate, 250 Pa. 78, 95 A. 382, might indicate that the presumption of legitimacy arises only when children are born during wedlock, but none is a precise holding to that effect. All that these cases decide is that where all the evidence in the case affirmatively establishes that there was no marriage, the offspring of the union must be considered illegitimate. In so deciding, the Court in Wharton’s Estate, supra, quoted with approval the statement by the auditing judge “£. . . that the facts upon which to base a doubt which appearing, must and would he construed in favor, of claimant are not present in this case . . .’ ”. (Emphasis supplied).

Whatever doubt as to the exact nature of the presumption of legitimacy might remain after a reading of the earlier cases is dispelled by more recent decisions of this Court. These recent cases are not confined to children born in the period of wedlock.

In Thorn Estate, 353 Pa. 603, 46 A. 2d 258, the issue was whether seven children of one George A. Bullock were entitled to an interest in the estate of George W. Thorn, and this depended solely upon their legitimacy. Although married to another woman, Bullock cohabited with one Margaret Omlor, and the seven claimants were the result of this meretricious relationship. Thereafter he obtained a divorce from his first wife and married Margaret Omlor. The claimants contended they were legitimated by reason of that marriage. In rendering the unanimous opinion of this Court sustaining the divorce, Mr. Justice Horace Stern said (p. 606) : “Our consideration of the case properly starts with a recognition of both the factual presumption that children are legitimate and the rule that, to overcome it, there is required clear, direct, satisfactory and irrefragable proof to the contrary: Senser v. Bower, 1 P. & W. 450; Thewlis’s Estate, 217 Pa. 307, 66 A. 519; McAnany’s Estate, 91 Pa. Superior Ct. 317; May’s Estate, 141 Pa. Superior Ct. 479, 484, 15 A. 2d 569, 571.”

In Smith Estate, 358 Pa. 616, 58 A. 2d 138, where there was a per curiam affirmance of the finding of the court below that the claimant was illegitimate, excerpts from the opinion of the court below which this Court adopted as its opinion, explicitly recognize the rule of Mays’ Estate, but state that the testimony of illegitimacy was “ ‘. . . clear, direct, satisfactory and irrefragable . . .’” and “ . fully rebuts the presumption of legitimacy.’

Rosenberger Estate, 362 Pa. 153, 65 A. 2d 377, was a dispute between two women, each of whom claimed to be the common law wife of decedent. In sustaining the validity of the first alleged marriage, Chief Justice Maxey said for a unanimous Court (p. 160) : “The court was rightfully impressed with the fact that not to recognize the decedent’s marriage with Grace would be to bastardize their child. The appellee relied upon the case of McAnany’s Estate, 91 Pa. Superior Ct. 317, where the Superior Court in an opinion by Judge Cunningham, held that the presumption and charity of the law are in favor of the legitimacy of every child, and whoever seeks to bastardize it must establish its illegitimacy by proof that is clear, direct, satisfactory and irrefragable. In the case at bar there certainly is no such proof of the lack of marriage between decedent and Grace as to stamp George 0. Rosenberger, Jr., their child, as illegitimate.”

The fact that the relationship was originally meretricious in the instant .case adds nothing, nor does the fact that the niece, Catherine E. Snyder, was born to John Kerwin and Mary Kerwin before any marriage: Thorn Estate, supra; Rosenberger Estate, supra; Act of May 14, 1857, P. L. 507.

The remainder of the appellants’ argument is concerned with an attempt to demonstrate that the testimony of appellees’ witnesses was incredible. This was for decision by the auditing judge and his findings, supported by evidence which he believed and affirmed by the court en bane, will not be disturbed by this Court on appeal: Mooney’s Estate, 328 Pa. 273, 194 A. 893; Borden Trust, 358 Pa. 138, 56 A. 2d 108.

The second aspect of this case concerns a parol trust allegedly created by the decedent in her lifetime. The sole testimony to support this trust was given by Miss Mary Brady, an intimate personal friend of the decedent who lived with her the last year of her life. This testimony reveals that sometime in January, 1948 Sarah Kerwin took Miss Brady to the North Side Branch of the Peoples First National Bank and Trust Company and made arrangements with the bank for Miss Brady to have access to her safe deposit box when decedent gave her the key; that at the same time decedent took three $10,000 U. S. Treasury 4% per cent. 1947-1952 bearer coupon bonds and some cash (the actual amount involved is $16,400) out of the box and placed it in her hands and when Miss Brady asked why the decedent did not put the money in the bank decedent told her her it “was all for charity” and named the charities; that in April, 1948 before decedent went to the hospital she told Miss Brady to go to the bank and take the bonds and the money out of the safe deposit box; that the next day when Miss Brady visited her, decedent asked if she had complied with the request; that Miss Brady then went to the bank and obtained the bonds and money and returned home and placed them in a tin box in a cupboard in the decedent’s home; that when decedent returned from the hospital in July, 1948 she told Miss Brady to get the tin box and took several one hundred dollar bills out of it to pay the hospital bills.²

Miss Brady also testified that decedent was going to take care of these charities in her will; that she never had possession of the money but was only to watch over it while it was in Miss Kerwin’s home; that the money was kept in the tin box because it was “right there if she [the decedent] wanted to give it”; that she would not go to the tin box unless the decedent told her to go.

It is well established that to prove an oral trust the proof must be clear, precise and indubitable: Danner et al. v. Danner, 366 Pa. 178, 180, 77 A. 2d 217. The auditing judge here characterized Miss Brady’s testimony as “highly equivocal”. For this reason alone the decree should be affirmed.

However, there is an additional reason why the decree must be affirmed. “In order to effectuate an inter vivos gift there must be evidence of an intention to make a gift and a delivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property but also invest the donee with complete control over the subject matter of the gift:” Tomayko v. Carson, 368 Pa. 379 (1951), 83 A. 2d 907. See also Pyewell's Estate, 334 Pa. 154, 5 A. 2d 123; Rynier Estate, 347 Pa. 471, 32 A. 2d 736. In the instant case the testimony of Miss Brady indicates that not only did Miss Kerwin not divest herself of all dominion over the subject matter but that it was kept in her house and on at least one occasion she used a portion of the money for personal expenses.

We therefore agree with the lower court that this claim was properly disallowed because (a) the evidence did not meet the quality test which has been established and (b) the decedent did not divest herself of dominion over the property.

Decree affirmed.. Costs to be paid by appellants.

1 This witness signed an affidavit which stated that “. . . She has personally known Mr. William E. Kerwin and Mrs. Katherine Kerwin Snyder to be the lawful children of Mr. John Kerwin, deceased, brother of the late Sarah Kerwin, deceased, and does further state that she has personally known- this fact since their birth.” When confronted with this on- cross-examination she said \ I know that they are his children arid -her children.”-- (referring to John-Kerwin and. Mary). . .... ...

2 Miss Brady had previously signed two statements and gave testimony at the first hearing. In her testimony at the first hearing she did not mention going to the bank and being handed the bonds and cash. The signed statements also differed materially from her final testimony. In the statements the version of the use that the decedent made of the money iñ the box was that both the hospital bill of $1,000 and the doctor bill were paid from it, •the money in the box was used for household expenses and rental income , of the decedent was placed therein.