Appeal of Nye , 126 Pa. 341 ( 1889 )

Opinion,

Me. Justice McCollum :

John C. Nye, a widower aged seventy years, and Elizabeth Reigel, a widow aged thirty years, were married in the summer of 1878, and dwelt together as husband and wife until the fall of 1879, when she left his home and moved into her own house about ten miles distant, where she resided until his death in November, 1886. A short time after the separation she commenced suit against him under the desertion statutes, which upon full hearing and investigation by the court of Quarter Sessions, resulted in a dismissal of her complaint. After that there was no communication between them, and no effort on her part to assert the rights or to discharge the duties of a wife. That she had deliberately resolved upon a permanent separation from Nye and his family is evident from what she said to Wm. Schlappig the morning she left. Nye was unwilling that she should leave, and tried to persuade her to remain with him. No angry or unkind words passed between .tliem on that occasion. While in his presence she made no complaint of misconduct on Ms part, and did not assign any reason for her determination to depart from his home. The testimony of the witnesses who were present and who describe the conversation and conduct of the husband and wife, stamps the separation as a wilful and malicious desertion on her part, and there is nothing shown of her subsequent behavior to deprive it of that character.

After Ms death she claimed a widow’s rights in his estate, and the Orphans’ Court awarded her the exemption, the fees of the witnesses to support her claim to it, and statutory dower. From this decree Cain Nye, a son and heir of the decedent, appealed. ,

In Odiorne’s Appeal, 54 Pa. 178, this court in an opinion by CMef Justice Woodwaed said, “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 f300 of it to her own use. 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 Mm and performs none of the duties imposed by the relation.”

lie exemption provided by these statutes has been described as a pure gratuity by force of law for the benefit of a decedent’s family: Sipes v. Mann, 39 Pa. 417. Tt does not belong to a woman who did not at least in contemplation of law sustain a family relation to her husband at his death: Hetrick v. Hetrick, 55 Pa. 290. It was not created for a wife who abandons her husband without reasonable cause and for seven years before his death refuses to perform her marital duties. The reasonable cause which justifies a wife in abandoning her husband is such as would entitle her to a divorce: Cattison v. Cattison, 22 Pa. 276. In the language of Justice Strong in Grove’s Appeal, 87 Pa. 443, “ separation is not to be tolerated for light causes, and all causes are light, which the law does not recognize as ground for the dissolution of the marriage bond.”

It remains to inquire, if Mrs. Nye had reasonable cause for abandoning her husband. As we have seen, her departure from his home was deliberate and without complaint or explanation to him. It is incumbent on her, therefore, to show conduct on his part which justified her in severing the family relation. This she has undertaken to do, and the evidence on which she relies for her justification is before us. Tt shows but one act of personal violence, and the single witness of that was her son, who was then but ten years old. Adam Reicliard testified that he was frequently at Nye’s house, and that he once, while they were quarreling, heard Nye threaten to strike her with a salt box. This is all of threat or violence which the evidence discloses. Mrs. Nye’s declarations to third persons in the absence of her husband, were not competent to affect him, and in view of the time when and the circumstances under which they were made were not admissible as a part of the res gestse. It is probable, however, that those declarations were all made with reference to the one act described by her son, and the provocation of that, according to his recollection, was her refusal to sleep with her husband, and this was conceded in her statement to Kauffman, together with an admission that she struck him in the face. There is no conflict in the evidence, and no question of the credibility of witnesses involved in the case. From the facts disclosed by the legal testimony it is our duty to decide whether a justification of the abandonment is shown.

In May v. May, 62 Pa. 210, it was said: “ A single act of cruelty, on a single occasion, as suggested in Richards v. Richards, 1 Gr. 391, may be so severe and attended with such corresponding circumstances of atrocity, as might, under a fair and liberal construction of the act, justify a divorce. But no single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce.” A single act of indignity will not be sufficient, nor indignities provoked by the complaining party, unless where the retaliation is excessive. It is not-every coarse and ungallant act, even though it amounts to a technical assault, that authorizes a severance of the marriage bond. It was well said by Chief Justice Lowkie, in Richards v. Richards, 37 Pa. 225: “It is not all unlawful and barbarous acts that are made grounds of divorce. We do not divorce savages and barbarians because they act as such towards each other.” The question with which we have to deal is not one of sentiment or chivalry, but of law and its faithful administration, and we have no hesitation in declaring that under our decisions and the evidence in this case Mrs. Nye is not entitled to the exemption of $300 out of the estate of her deceased husband, or to the fees of her • witnesses in prosecuting her claim for it. The first and second specifications of error are sustained.

Dower does not depend on the existence of the family relation at the death of the husband, and is not barred by desertion. The third specification is not sustained.

The decree of the Orphans’ Court, awarding to Elizabeth Nye a widow’s exemption of $300, and $24.12 for witness fees, is reversed, and it is now considered and adjudged that the remaining claims of creditors and for expenses be paid according to said decree; that the balance for distribution, to wit, $38.85, proceeds of personalty, and $1,247.94, proceeds of real estate, be distributed as follows, viz.: one third of the personal fund to Mrs. Elizabeth Nye absolutely, and the interest upon one third of the real estate fund to be paid to her annually during her natural life; two thirds of the personal and real estate fund to be paid to the children and heirs of the decedent, named in the decree of the Orphans’ Court, share and share alike, and the remaining one third of the said fund to be paid to the said children and heirs in the same proportion as above, at the death of Elizabeth Nj^-e, widow of decedent. It is ordered that the costs of this appeal be paid by the appellee.