Opinion
October 6, 1955.
November 28, 1955.
Decedents' estates — Surviving husband — Intestate share — Forfeiture by non-support or desertion — Evidence — Burden of proof — Intestate Act of 1947.
1. Under § 6(a) of the Intestate Act of 1947, P. L. 80, 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 under the Intestate Act. [279-80]
2. The fact that the husband's non-support of his wife follows a consensual separation does not make inapplicable § 6(a) of the Intestate Act of 1947. [282-3]
3. The words "one year or upwards previous to the death of his wife" in § 6(a) of the Intestate Act of 1947 mean one year immediately prior to her death. [284]
4. The burden of proving either desertion or non-support by the husband is upon the heirs. [281]
5. The husband's conduct at a time prior to one year before his wife's death may establish that he wilfully refused to support his wife during the last year of her life even though he was totally disabled and without means to support her during that period; where a wilful non-support during an earlier period of the wife's life has been proved and non-support continued up to the wife's death, the burden is on the husband to prove that the non-support of his wife for the year previous to her death was not wilfull. [288-6]
6. Buckley Estate, 348 Pa. 311, followed. [285]
Contracts — Validity — Duress — Evidence — Burden of proof.
7. One who alleges duress as ground for avoiding a contract must prove it. [282]
Mr. Justice MUSMANNO filed a dissenting opinion.
Argued October 6, 1955. Before STERN, C. J., STEARNE, JONES, MUSMANNO and ARNOLD, JJ.
Appeal, No. 120, March T., 1955, from decree of Orphans' Court of Allegheny County, 1952, No. 6288, in re Estate of Anna Hudak, Dec'd. Decree affirmed.
Audit of account of administrator. Before RAHAUSER, J.
Husband of decedent claimed an intestate share of her estate.
Claimant and decedent were married on February 18, 1919. Early in 1920 while they were living together with their infant son in a rented house in Dunbar, Pa., they had a disagreement and the wife and her mother had the husband arrested. Either in a lawyer's or a squire's office the husband and wife signed an inartistically drawn document agreeing "to separate and live appart from this day and date, that they will in no way have any dealings or communications whatsoever, one with the other, that the [Husband] agrees to pay . . . seven ($7.00) dollars per week . . . to and for the support of her . . . for the maintenance of her and there child, until said child is seven (7) years of age, or until other araingements have been agreed upon, by and between them, the [Husband] agrees that he will keep himself away from her or her home, and will in no way injure or molest her."
The following day the wife and her mother moved the child's cradle and other goods out of the rented house. Two weeks later the husband moved first to New Jersey and then to Pottsville, Pa. He left no forwarding address.
Other facts appear in the following portions of the Opinion of RAHAUSER, J.:
The record does not show that Anna Hudak ever knew where Michael Hudak had gone, except the fact that the son, Andrew Hudak, wrote his father while Andrew was in military service and there is some testimony that the son visited his father some time between 1939 and the time that he, Andrew Hudak, was lost in action in the Korean War.
The question here involves Section 6 (a) of the Intestate Act of 1947 (20 PS 1.6). The section reads as follows: "Forfeiture (a) Husband's Share. A husband who, for one year or upwards previous to the death of his wife, 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 personal estate."
At common law no degree of misconduct by the surviving spouse resulted in a forfeiture of his or her rights in the estate of the deceased spouse. Forfeiture is based on statutes. The Statute of Westminster II, 13 Edw. I, c. 34, provided for forfeiture of dower rights of a wife who voluntarily left her husband and committed adultery. In 1869 the Supreme Court held this statute to be in effect in Pennsylvania in Reel v. Elder, 62 Pa. 308. Section 5 of the Act of 1855, P. L. 430, barred a husband from intestate succession if he deserted or wilfully failed to support his wife for one year or more prior to her death. This section was amended by the Act of 1917, P. L. 234, whereby a deserting wife was also barred. The Intestate Act of 1917 repealed all prior statutes and re-enacted them in substantially the same language. Section 6(a) of the present Act supra repeats the corresponding section of the 1917 Act almost verbatim.
In the light of the history of the legislation it is clear that the collateral heirs have the burden of establishing that the surviving husband, for a period of one year or upward previous to the death of the wife, either willfully neglected or refused to provide for his wife or willfully and maliciously deserted her.
The agreement is clear that Michael Hudak agreed to pay his wife, Anna Hudak, seven dollars per week. There is no question that this agreement was not complied with, and there is no question that Michael Hudak did not support his wife from the time of their separation March 20, 1920.
The Court is of the opinion that the collateral heirs established the non-support of Anna Hudak since 1920 and from that fact alone he forfeited any right in her estate. As the Superior Court said in McLiesh Estate, 161 Pa. Super. 292, 295: "The decree is sustained by numerous authorities. The burden of establishing that the husband's conduct forfeited his right to share in the estate of his wife was upon the heirs. Schreckengost's Est., 77 Pa. Super. 235; Buckley Est., 348 Pa. 311, 35 A.2d 69. However, it was not incumbent upon them to show both desertion and non-support, but merely to show one or the other. Nixon's Est., 104 Pa. Super. 506, 159 A. 172."
The facts in this case are similar to those of the Estate of Martina R. Nixon, 104 Pa. Super. 506, 512-513. * * *
Another contention of the husband is that he was not bound to carry out the terms of the agreement with his wife for the reason that the agreement was voidable and that he disaffirmed his agreement on his return from Connellsville.
In this regard Mr. Hudak's position is that the agreement was induced by duress. It is the position of Michael Hudak that the said agreement is voidable because of the nature of its execution. He contends that it falls within the category of duress as defined in Baker v. Morton, 79 U.S. 150, 158, where the Court held as follows: "Where a party enters into a contract for fear of loss of life, or for fear of loss of limb, or fear of mayhem, or for fear of imprisonment, the contract is as clearly void as when it was procured by duress of imprisonment, which is where there is an arrest for an improper purpose without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, and the rule is that in either of those events the party arrested, if he was thereby induced to enter into a contract, may avoid it as one procured by duress."
The Court does not agree that these principles are applicable here. The burden of proving duress was upon Mr. Hudak. There is no clear proof that the agreement was executed in the office of a committing Magistrate, nor is there sufficient proof in the record to warrant the Court in finding as a fact that Mr. Hudak was under arrest at the time of the execution of the agreement and there is no proof in the record to the effect that the arrest, as alleged, was for a lawful or unlawful purpose. See Fountain v. Bigham, 235 Pa. 35, 45, * * *
While the circumstances of the execution of the agreement and the execution of the agreement itself are not beyond criticism, the evidence is not sufficient to establish duress. * * *
It is his further contention that he did not carry out the agreement because his wife deserted him and his request for her to remain with him relieved him of the obligation of supporting her.
He contends further that he asked his wife to stay in Dunbar with him after the Connellsville incident and that this request is sufficient with the other circumstances in the case to establish the fact that Anna Hudak, by her actions, relieved him of the duty of supporting her. His argument, through his counsel, is to the effect that the following cases are applicable to his case. In Commonwealth v. Sincavage, 153 Pa. Super. 457, 460, the Court said: "The only sufficient cause justifying a husband's refusal to support his wife is conduct on her part which would be a valid ground for divorce. Com. v. Henderson, 143 Pa. Super. 347, 17 A.2d 692. A voluntary withdrawal of a wife from her husband without adequate legal reason defeats her right to an order of support (Com. of Pa. v. Bachman, 108 Pa. Super. 422, 164 A. 833) for a wilful and malicious desertion will be presumed. Whelan v. Whelan, 183 Pa. 293, 38 A. 625. But if the separation is with the consent of the husband, the wife nevertheless is entitled to support until his consent is withdrawn."
In Jac's Estate, 355 Pa. 137, 142, the Court said: (MAXEY, C. J.) "In its opinion the court correctly held that it was the petitioner's burden to show that the husband constructively deserted his wife, or to show that the husband wilfully neglected or refused to provide for his wife. The court also correctly held that the desertion by the wife, if not justified, would relieve the husband of the obligation to support her. . ."
The Court finds that these cases, insofar as they relate to the misconduct of the wife, are not applicable here.
The evidence is clear that the wife did not desert the husband. The agreement shows that part of the consideration for the agreement was the mutual assent to live apart. At this point the husband contends that if the separation is consensual, nonsupport alone is not sufficient to bar the husband's right to share in the estate of the wife.
With this contention we do not agree. The fact that the husband has admitted that he has not supported his wife even with one payment and made no effort toward reconciliation is sufficient proof of his willful refusal to support his wife and his intent to live separate and apart from her. Justice MAXEY, in Jac's Estate, 355 Pa. 137, 144, said: ". . . the fact that despite the circumstances that after the separation of the husband and wife they both resided in the same section of the Commonwealth, a comparatively short distance from each other, he made no effort to locate her and seek to induce her to return compels the inference that the husband did not want her back and that she had good reasons for not seeking a matrimonial sanctuary in his home but preferred to earn her own livelihood elsewhere by keeping a boarding house. When a husband and wife separate because of personal disagreements, custom and that chivalry which is properly expected of a husband requires that any initiative taken for a reconciliation is to be taken by him . . ."
Mr. Hudak makes no contention that he ever made any attempt to see his wife after he left Dunbar. His actions in this regard, in the opinion of the Court, are such as to infer that he intended to and did ratify the agreement he signed in Connellsville, that he was concealing himself from his wife so that she could not force him to comply with the terms of that agreement.
The husband also contends that the year with which we are concerned is the year prior to the death of Anna Hudak. We agree with his contention that the period we are here concerned with is not the period immediately following the date of separation but the period immediately preceding the date of death. Bregy. [Intestate, Wills and Estates Act of 1947, page 704] " § 3. Desertion — Problems Distinct from Divorce Law. a. The One Year Period. . . . It is plain from common sense, as well as such cases as there are, that the one year period must immediately precede the death; otherwise, the words 'previous to death' would be meaningless surplusage. . . ." Bregy. [page 709] " § 4. Non-Support. a. General . . . The statutory period is the same as in desertion — one year prior to death, and it seems clear that this means immediately before death, as in the case of desertion."
In Flanagan's Estate, 59 Pa. Super. 61, 67, the Court, through KEPHART, J., said: ". . . § 5. (of the Intestate Act of 1855) provides that the husband shall be denied his estate in the wife's property upon his failure to support or upon his desertion for one year previous to her death. The language indicates at least that the period of time would be next preceding her death. . . ."
We, however, do not agree that, because Michael Hudak was incapacitated since 1943, he can not be said to have willfully refused to support his wife. We believe that the incapacity of Mr. Hudak since 1943 is merely incidental, that his conduct since 1920 until his incapacity was the proof of his status and his intent and that his incapacity in no way inures to him or to his advantage in the advancement of his claim in this estate. We believe that the law as applied in Buckley Estate, 348 Pa. 311, 312, is applicable here. There the Court, speaking through Mr. Justice ALLEN M. STEARNE, said: "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 2-1/2 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 upwards 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 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."
It is the opinion of this Court that the husband, by his actions since 1920, has forfeited his right to share in the aforesaid estate, that he willfully absented himself from his wife since 1920 and that he may not now, after her death, show up and claim any portion of that estate.
Husband's exceptions to adjudication dismissed and decree of distribution entered. Husband appealed.
Louis H. Artuso, with him John M. Walker, and G. Harold Watkins, for appellant.
Solis Horwitz, with him Daniel Krause, and Boreman, Parker, Krause Horwitz, for appellees.
The decree of the court below is affirmed on the opinion of Judge RAHAUSER. Costs to be paid by appellant.
At the age of 17, Michael Hudak entered the coal mines in Pottsville, Pennsylvania, and since then has known scarcely any occupation other than that of toiling in the subterranean depths of the earth, extracting the "black diamonds" which America for many decades has worn in the diadem of her economic wealth. In 1939, 28 years after descending for the first time into the deep caverns, Hudak encountered the fate which hangs like a black cloud over every coal miner's destiny. Since then he has been permanently disabled.
On November 30, 1952, his wife died, entitling him, under the intestate laws to the major portion of her estate. The Orphans Court of Allegheny County has decreed that he shall not participate in the estate and has awarded all of it to collateral heirs, citing as authority Sec. 6 (a) of the Intestate Act of 1947 (20 P.S. Sec. 1.6) which reads: "Forfeiture. (a) Husband's share. A husband who, for one year or upwards, previous to the death of his wife, 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 personal estate."
The majority of this Court has affirmed the decision of the lower Court and has adopted its opinion disposing of the case. I have a high regard for the writer of that opinion and regret that I must disagree with his view that one who is totally and permanently disabled can be regarded as having " wilfully neglected or refused to provide" for his wife. Nor can I agree that whatever Michael Hudak did prior to 1943 shall be accepted as conclusive proof of his intentions in 1951, a year prior to his spouse's death. To project into the future a wilful intent which Father Time has already shovelled into the grave of the past is to formulate a species of ex post factoism in reverse. Moreover, there is evidence that the separation between husband and wife was a consensual one.
All italics mine.
The case of Buckley Estate, 348 Pa. 311, cited by my learned friend in the Court below, is scarcely applicable to the facts in the case at bar. As Justice ALLEN M. STEARNE pointed out, Buckley was a "persistent criminal" and "at the time of the audit he was still serving from 2 1/2 years to 5 years in prison following his most recent sentence, on February 8, 1940, on the charge of burglary." It is obvious that in excluding Buckley from his wife's estate, this Court was guided by the fact that Buckley's failure to support his wife was an act of volition on his part since it followed upon his conviction for a crime which he voluntarily committed. Thus, Justice STEARNE said: "While the incarceration of the husband for a year and upwards 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."
No such presumption should arise in the circumstances of the case at bar, because Hudak's injuries (and consequent inability to support his wife) were the result of an accident over which he had no control.
Michael Hudak is not a criminal. Apart from disagreements with his wife and quarrels with his in-laws, his life, so far as the record shows, has been that of a law-abiding citizen and a humble worker, hoping through the years to find amid the dust of the mines one shiny pebble of good luck. He never found it, and the decision in this case would appear to have thrust that possibility over the precipice of impossible performance into the abyss of the nevermore.