# Jury Estate > Supreme Court of Pennsylvania · March 21, 1955 · 381 Pa. 169 URL: https://www.frixlaw.com/law-library/cases/9735644 ## Case - **Full name:** Jury Estate - **Court:** Supreme Court of Pennsylvania - **Decided:** March 21, 1955 - **Citations:** 381 Pa. 169; 112 A.2d 634; 1955 Pa. LEXIS 466 - **Precedential status:** Published - **Opinion:** Dissent by Allen - **Judges:** Stern, Stearne, Jones, Bell, Chidsey, Musmanno, Arnold - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735644 ## Opinion text Dissenting Opinion by Mr. Justice Allen M. Stearne: A surviving husband forfeits his interest in his deceased wife’s estate when he neglects or refuses to provide for her for one year or upwards previous to her death. Olive O. Jury, the wife, died testate. By her will her residuary estate is directed to be distributed among her heirs “as provided by the intestate laws of the Commonwealth of Pennsylvania.” Since testatrix’s testamentary provision was that her residuary estate should be “distributed among my heirs as provided by the intestate laws of the Commonwealth of Pennsylvania”, the provisions of the Intestate Act of 1947, infra, are incorporated into the will by reference. Those *180 take whom the Act includes. Those whom the Act rejects are excluded. While not affecting the result the majority erroneously states: “. . . [the husband] claims under the testatrix’s will and not against it. However, that is of no present importance. Had he elected to take against the will, he would have been met with the same objection by the collateral heirs: Section 9 of the Wills Act of 1947, 20 PS 180.9.” Had the husband elected to take against the will he, as the surviving spouse, would not be entitled to receive the $10,000 allowance: Act of April 24, 1947, P.L. 89 sec. 8, 20 PS §180.8 and Commission’s Comment. Section 6 (a) of the Intestate Act of April 24, 1947, P.L. 80, 20 PS §1.6, provides: “A husband who, for one year or uptoards, previous to the death of his toife, 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.” (Italics supplied) Under (d) of Section 6 of the Intestate Act of 1947, supra, the surviving husband or wife is made a competent witness as to all matters pertinent to the issue of forfeiture. The testimony in this case is exclusively that of the husband. No useful purpose will be served in restating all the facts. It will suffice to state that Ned Osthaus and deceased, at the respective ages of forty-one and forty, married July 18, 1981, in Ohio, while the wife was attending summer school. The wife, a school teacher, who always used her maiden name, died December 15, 1951. During the twenty years the parties never established a common home. However, during the session of summer school and after the wife’s father died, the parties sporadically cohabited. Since October, 1940, the *181 husband never saw his wife. Correspondence passed between the parties, but the nature and contents thereof was not disclosed. During the entire period of twenty years there is no testimony that the husband ever contributed to his wife’s support. During the two years preceding the wife’s death there was affirmative testimony that the husband contributed nothing. The record discloses that decedent’s estate for distribution is $19,803.41. As there is no issue the husband’s share, if allowed, is $10,000 plus one-half the balance, a total of $14,901.70, leaving $4,901.71 for distribution among the wife’s next of kin. Since the husband admittedly contributed nothing toward his wife’s support for one year and upwards previous to her death, the pivotal question is whether such neglect or refusal to provide was “wilful”, and on whom the burden of proof rested. That the failure to support, in the absence of evidence of inability, acquiescence or other excusing circumstance, is regarded as toilful cannot be questioned. Wilful means deliberate or intentional. It does not signify corrupt: United States v. Edwards, 43 Fed. 67 ; Commonwealth v. O’Leary, 168 Pa. Superior Ct. 569 , 79 A. 2d 789 ; 59 Dick. L. Rev. 127 , 138. There is no question but that the burden of proof originally is on the next of kin, but facts upon the record may shift the burden of proof upon the suing spouse. The identical question of burden of proof was presented in a will contest. What Mr. Chief Justice Stern (then Justice) said in Szmahl’s Estate, 335 Pa. 89 , 6 A. 2d 267 , has pertinent application. On p. 93 he said: “. . . The acceptance in evidence of the probate merely shifts to contestants temporarily the duty to come forward with evidence, but the proceeding remains at all times a hearing de novo. It is not uncommon in legal procedure for an ultimate burden of proof *182 to rest upon one party throughout, but for the burden of coming forward with evidence to pass back and forth from one side to the other. If no testimony is offered other than the probate of the will itself, the legal result obviously should be, as the court below decided in the present case, that the probate is not impeached and must be accepted as conclusive, just as if there had been no appeal. . . .” The next of kin by the husband’s own testimony met their initial burden of proof when he admitted that for a year and upwards, 1950 and 1951, he failed to support his wife. Indeed, from the husband’s testimony, he had not contributed toward her support during the entire period of twenty years. It is to be observed that under Section 6 (a) of the Intestate Act of 1947, supra, a husband forfeits his intestate share of his deceased wife’s estate (a) if for one year or upwards previous to the death of his wife he shall have wilfully neglected or refused to provide for her or (b) for that period or upwards shall have wilfully and maliciously deserted her. The burden of proof in either instance is similar. Judge Hunter, in his monumental Pennsylvania Orphans’ Court Commonplace Book, Vol. 1, p. 662, speaking of desertion, states that while the burden of proof is originally on the heirs, proof that the husband departed from the home and lived separate and apart shifted the burden and required the spouse to show no desertion. The following cases were cited in support of the text: Jac Estate, 355 Pa. 137 , 49 A. 2d 360 ; Schreckengost’s Estate, 77 Pa. Superior Ct. 235 ; Mehaffey Estate, 102 Pa. Superior Ct. 228 , 156 A. 746 ; Nixon Estate, 104 Pa. Superior Ct. 506 , 159 A. 172 . In Archer Estate, 363 Pa. 534, 536 , 70 A. 2d 857 , this Court, speaking through Mr. Justice Drew (later Chief Justice) said: “. . . when [the heirs] established *183 [the wife’s] withdrawal from the common home, they satisfied that burden and it was then her duty to show that her leaving was not a wilful and malicious desertion: Heath Estate, 156 Pa. Superior Ct. 597, 600 , 41 A. 2d 353 .” Similar burdens of proof exist in cases of failure to support. In Kvist’s Estate, 256 Pa. 30 , 100 A. 523 , a man and a woman were married in 1900 and lived together as butler and cook in the same family for one year. In 1904 they obtained employment in different cities. The wife lived with her husband sporadically for the next two years. For the eight years preceding the wife’s death in 1914 she lived in Pittsburgh while he lived in the States of New York and Connecticut. She worked under her maiden name, made no requests for assistance and her husband made no offer to assist her nor did he see her for several years previous to her death although there was occasional correspondence between them. It was held that the husband had forfeited his right in his wife’s estate by his failure to provide for her for one year immediately prior to her death in the absence of any evidence that she had released him from his obligation to provide for her even though they were living apart by agreement. This Court, speaking through Justice Frazer (later Chief Justice) said (p. 36) : “. . . The auditing judge, however, expressly holds there is no testimony to support a finding that Mrs. Randall voluntarily released her husband from his duty to provide her with maintenance, and the mere fact that she did not demand support does not excuse him from the performance of his duty toward her. . . .” In Buckley Estate, 348 Pa. 311, 312 , 35 A. 2d 69 , we said: “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 *184 the burden to the husband to establish that there had been no desertion and non-support: Schreckengost’s Estate, 77 Pa. Superior Ct. 235 ; Mehaffey’s Estate, 102 Pa. Superior Ct. 228 , 158 A. 746 ; Nixon’s Estate, 104 Pa. Superior Ct. 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.” By his own testimony appellant disclosed that for at least two years prior to his wife’s death he had not contributed anything toward her support. He evidenced a total lack of candor. He should have come forward with testimony, if any he had, to prove that failure to support his wife was with her acquiescence and that the parties lived apart by agreement. Since appellant failed to sustain his burden of proof the learned court below properly declared that the husband possessed no interest in his wife’s estate. For these reasons I dissent. Mr. Chief Justice Horace Stern and Mr. Justice Arnold join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735644. Public record. Not legal advice.