Opinion
January 3, 1944.
Decedents' estates — Surviving husband — Taking against will — Election — Non-support — Desertion — Effect — Evidence — Burden of proof — Intestate Act.
1. Under Section 5 of the Intestate Act of June 7, 1917, P. L. 429, a surviving husband who has for one year and upwards previous to the death of his wife wilfully neglected or refused to provide for her, or who has for that period wilfully and maliciously deserted her, is barred from taking any interest in her estate against her will. [312]
2. Ordinarily, the burden of proving either desertion or non-support by the husband is upon the heirs. [312]
3. Where it appeared that the decedent's husband was a persistent criminal who had been incarcerated in various prisons in this state and elsewhere over a 15-year period prior to decedent's death and was at the time of the audit serving a sentence in prison which had been imposed upon him in the year prior to decedent's death, it was Held that the facts raised a presumption that he had failed to support his wife and imposed upon him the burden of establishing that there had been no desertion and non-support. [311-13]
Submitted December 2, 1943.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 4, March T., 1944, from decree of O. C. Allegheny Co., 1941, No. 3022, in Estate of Jennie T. Buckley, deceased. Decree affirmed.
Audit of account of executor.
Decree entered setting aside election of husband to take against will. Exceptions to adjudication dismissed, before TRIMBLE, P. J., MITCHELL and MILHOLLAND, JJ., opinion by MITCHELL, J. Husband appealed.
Martin A. Flanagan, for appellant.
Charles C. Arensberg, for appellees.
Thomas Joseph Buckley, surviving husband of the decedent, elected to take against her will. Those interested in the estate contended, and the orphans' court found as a fact, that the husband had, for one year and upwards previous to the death of his wife, wilfully neglected or refused to provide for her, and for that period wilfully and maliciously deserted her. The rights of the husband, in such circumstances, are barred by the Intestate Act of June 7, 1917, P. L. 429, section 5, 20 PS section 41. Our sole inquiry therefore is whether the court below had sufficient proof to support its findings.
Jennie T. Buckley died in 1941. The husband was shown to have been a persistent criminal, and to have been incarcerated in various prisons in this Commonwealth and in the State of Ohio. At the time of the audit he was still serving from 21/2 to 5 years in prison following his most recent sentence, on February 8, 1940, on the charge of burglary.
While the burden of proof of desertion and non-support of a surviving spouse originally was upon the heirs, the facts appearing in this record shifted the burden to the husband to establish that there had been no desertion and non-support: Schreckengost's Estate, 77 Pa. Super. 235; Mehaffey's Estate, 102 Pa. Super. 228, 156 A. 746; Nixon's Estate, 104 Pa. Super. 506, 159 A. 172. This burden the husband wholly failed to meet. It was not incumbent upon the heirs to show both desertion and non-support, but merely to show one or the other.
While the incarceration of the husband for a year and upward might not of itself establish either wilful desertion or non-support, yet in the facts of this case the persistent course of criminal conduct and the various imprisonments since 1926, in this and another state, raise a presumption that during such period, and particularly since 1940, the husband failed to support his wife. The burden was therefore placed upon the husband to establish that during the intervening periods of freedom from imprisonment the husband did in fact support his wife, and that his failure to support his wife for a year or upwards previous to her death was not wilful neglect or refusal to provide for the wife, but was due solely to his incarceration. This the husband wholly failed to do.
The decree is affirmed; costs to be paid by the appellant.