Wallower's Estate

6 Pa. D. & C. 211, 1925 Pa. Dist. & Cnty. Dec. LEXIS 283

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: May 22, 1925
• Docket: No. 20
• Status: Published

Opinion

Lamorelle, P. J.,

One claiming as surviving spouse of an intestate the $5000 preference given by section 2 of the Intestate Act of 1917 must show actual marriage or, in the alternative, such circumstances as in law raise a presumption of marriage: Wandall’s Estate, 29 Dist. R. 1132. Measured by this standard, the Auditing Judge finds that the claimant has not made out his case.

Notwithstanding the able argument of the exceptant, we are not convinced that this ruling should be reversed. Says Mr. Justice Fell, in Fur bush’s Estate, 220 Pa. 166 (at page 167): “Findings of fact will not be reversed by an appellate court without the clearest and most convincing proof of error. The credibility of witnesses, the weight to be given to their testimony because of their character, intelligence and knowledge of the subject can be much better determined by the judge who hears them than by us, and we should be in danger of falling into grave error in substituting our judgment for his: Steinmeyer v. Siebert, 190 Pa. 471.” See, also, Comly’s Estate, 185 Pa. 208; Gongaware’s Estate, 265 Pa. 512; Grollman’s Estate (No. 1), 273 Pa. 559; and Kull v. McCleman, 2 D. & C. 517.

Moreover, the only written evidence submitted was at variance with the oral testimony of the husband.

Accordingly, the exceptions are dismissed and the adjudication is confirmed absolutely.