Moore's Appeal

3 Pennyp. 110

• Court: Pennsylvania Orphans' Court, Berks County
• Decided: February 28, 1883
• Docket: No. 111
• Status: Published

Opinion

the opinion of the Court was delivered by

Mr. Justice Sterrett.

If, instead of finding that, appellant deserted her husband without cause, the learned auditor had found that the latter, through the evil influence of mischief-making relatives, was persuaded to leave his home under circumstances calculated to induce his wife to believe he did not intend to return, his conclusions of fact would have been more in accordance with what appears to be the weight of the evidence.

The circumstances under which appellant’s husband was induced to leave home are detailed by one of the witnesses, Mr. Hummel, to whose store he was taken immediately before he left the city. “His son and two of the Slichters got me to go there to Moore’s and get him to go with me to my store, that they had something to tell him. Mrs. Moore was not there when he went away with me. The Slichters told me before I went for him that Mrs. Moore was going to take him to the Insane Asylum at Harrisburg. I don’t know whether I told this to Moore or not. I suppose they told him all about it when he got to the store, and that day he went along home with the Slichters to the- country, and that is the last he and his wife ever lived together.” On cross-examination, he says: “They wanted to let him know that Mrs. Moore was going to send him to the Insane Asylum at Harrisburg. I went for him : found him at home. I told him his son and the Slichters were over at the store and wanted to see him. He came along to the store. At the store I did not hear much of what they said. They went off in a carriage. I learned afterwards that he went to Isaac Slichter’s, in Robeson township.” Mrs. Brown testifies that she met Hummel and Moore on their way to the store; the latter was only partially clad, having neither vest, necktie, collar, nor “suspenders on, and had to hold his pants up with his hands. They were walking pretty fast. Iiummel was leading him. I asked Mr. Moore whether he was going away, and he said no, he would be back soon, he did not feel good. This was some time in November. It was cold. It was about three, p. m., when I met them going towards Hummel’s store.” The son referred to by the witnesses is a stepson of appellant, and the Slichters are near relatives of testator’s first wife. The testimony shows that neither of these parties was so devotedly attached to appellant, testator’s second wife, that they would be likely to take a very deep interest in her personal welfare. The testator was then, and for a long time before had been, in failing health. The unwarranted representation that his wife intended to send him to the asylum doubtless had its desired effect, and produced its legitimate fruit — estrangement of feeling. This is very evident from testator’s statement to his cousin, Mrs. Bachter, a few weeks before he died. She says : “ He told me he was sorry he ever went away from Mrs. Moore. He said he was taken away to the country, and he would have come back, but they told him she was going to take him to the insane asylum at Harrisburg, and that he didn’t want to go there because he was not crazy. Hummel came after him and he was not dressed, nor fit to go ; that Hummel told him that made no difference, he was just to go along to Fourth and Penn; then when he came down there the Slichter boys were there. Abe told him he was to go along with them to the country for a week ; he said he was not fit to go, that his clothes were not clean, and his wife was not at home.”

It is clearly shown by the testimony that prior to his leaving home, under the circumstances above stated, testator was kindly treated and cared for by his wife. In the language of one of the many witnesses examined on that subject: “ She always treated him kindly, took care of him, and waited on him. She was always at home. I came there often unexpectedly. He often talked to me about his wife’s kindness to him ; that she treated him kindly. He spoke to me about this nearly every time I was there.” Another witness, Mrs. Dallet, says appellant treated her husband “with all possible affection. She attended on him; waited on him faithfully. At times, he was very peevish and fretful. I never saw her unkind to him.” Joseph Moore testifies he was often at his brother’s house ; “visited him up to the time of his leaving. He was kindly treated by his wife. Yisited him also when he lived with his daughter. I always thought he was treated better by his wife than by his daughter.” Several witnesses testify substantially to the same effect, and there is no conflicting testimony on the subject. It is impossible to read the testimony without coming to the conclusion that appellant’s deportment towards her husband was that of a kind and affectionate wife, prior to the time he was induced to leave home, under circumstances calculated to impress her with the belief that she would thenceforth be obliged to take care of herself. She doubtless acted unwisely in removing to her own house during his absence ; but the testimony shows she did so not with the intention of deserting him, but because she had reason to believe that it was at least doubtful whether he intended to return to her; and when he did return, his conduct was calculated to widen rather than heal the breach he had occasioned. From an examination of the testimony, we are satisfied it did not warrant the conclusions of fact upon which the Court refused to allow appellant’s claim. The decree must, therefore, be reversed.

The net balance for distribution is $502 98, of which appellant, as widow of the testator, is entitled to receive $300; testator’s two children, Gr. W. Moore and Elenora Roland, each $67 66 ; and appellant the interest annually on $67 66 during her life, and at her decease, the principal to be equally divided between testator’s two children.

Decree reversed at the cost of appellees, and it is now adjudged and decreed that the fund, $502 98, be distributed as above stated.