Odiorne's Appeal , 1867 Pa. LEXIS 86 ( 1867 )

The opinion of the court was delivered, by

Woodward, C. J.

Where a wife leaves her husband and renounces all conjugal intercourse a considerable time before his death, she becomes not such a widow, after his death, as was in the contemplation of the legislature when the Acts of Assembly were passed which entitle her to administer his estate and to appropriate $300 of it to her own use. It has been held that desertion for more than twelve years forfeits her rights under these statutes: 2 Am. Law Reg. 510. Nor is a wife within their meaning who has lived in a foreign country and never formed part of her husband’s family here: Spier’s Appeal, 2 Casey 233. Nor a wife who, by articles of separation, has relinquished all her rights in her husband’s estate: Dillinger’s Appeal, 11 Casey 357.

The acts contemplate the case of a wife who lives with her husband till his death and faithfully performs all her duties to his family, not one who voluntarily separates herself from him and performs' none of the duties imposed by the relation.

On this ground we think the court .judged soundly in denying administration to the appellant. It is denied that she deserted her husband, but it is impossible to read the letters upon our paper-books without seeing that whilst Odiorne regarded his wife with the tenderest affection and desired her society, she, on the other hand, had conceived an unconquerable disgust for him and was determined never again to live with him. Under date of August 20th 1866, after she had gone to Detroit as an actress, she employed the following language:—

“My being away from you has fully convinced me (although I knew it before), that I could never again endure the thought of living with you — no matter in what relation. I would sooner die than be forced to do so, and I know the law cannot force me to.” * * * “ I do not suppose that you will view this in any kind of a reasonable light, as reason does not seem to be one of your qualities, but, John, you must listen to facts, and the thing has been reduced to this point: that man nor the devil shall force me to do against my will, let the consequences be what they may ; I cannot do otherwise. I am able and willing to take care of myself, and ask no bones off of any of you. I feel that I never want to see you again arid I might as well say so.”

To this letter he returned a most affectionate expostulation, and she -replied, under date of August 24th, repeating with equal emphasis her fixed resolution to live with him no more. “ My decision,” she says, “ is the result of calm, deliberate and decided reflection. I feel that by doing what you wish I would be committing a crime against my own nature. I will tell you that every feeling in my nature rises in most terrible revolt and repugnance at the simple idea of ever being anything to you — it is disgusting to me — I swear it by all that is holy, and yet you are so selfish as to seek by your sorrow to influence my inclinations. But I repeat you never can do it. I shall never under heaven be yours again, and you might as well, first as last, view it in a just and practical light.”

There is much more to the same effect in her letters. Now this lady, who could defy her husband’s sorrowful entreaties to return to the duties of a wife, ought not to be so prompt to seek the rights of a wife, after driving him into a premature grave. It is to the faithful wife, who lives with her husband, and sustains and comforts him as he descends into the dark valley, that the law gives rights which it withholds from her who forgets and repudiates both vows and duties.

Nor do we conceive that this woman is in a position to object that administration was granted to one out of the state. No doubt the register required satisfactory security within the state to be given, and seeing that the appellant has no right to be preferred in the administration, we see no ground for vacating the letters that have been issued.

The decree is aflirmed.