Hilton's Estate , 263 Pa. 16 ( 1919 )

Opinion by

Mr. Justice Frazer,

Wallace J. Hilton, colored, died August 19, 1915, intestate and without issue. On March 5, 1896, Hilton married Sarah' McPherson, pursuant to a license previously obtained in Washington County on October 29, 1895, and from the date of the marriage until decedent’s death they lived together as man and wife. After Hilton’s death Kizziah J. Hilton, claiming as surviving widow, filed in the office of the register of wills a renunciation of her right to letters of administration on Hilton’s estate and requested the appointment of Albert J. Hilton, a brother of decedent. Other brothers and sisters of decedent joined in a similar request, and, on August 26, 1915, Sarah McPherson Hilton filed a caveat in the office of the register of wills notifying the register of her claim to the right to administer on the estate of her deceased husband and asking that letters be granted her. After hearing, the register refused to grant letters to Albert J. Hilton and subsequently appointed Sarah Hilton. Prom the register’s ruling an appeal was taken to the Orphans’ Court, which affirmed the decision of the register and subsequently overruled exceptions to the decree from which Albert J. Hilton and his brothers and sisters have appealed.

The testimony submitted on behalf of appellants establishes, and in fact it is not denied, that at the time Kizziah J. Hilton filed her renunciation in favor of Albert J. Hilton she was living as the wife of Charles Clark to whom she was married May 22, 1905, under a license issued by the Probate Court of Cuyahoga County, Ohio, in which she' was named Jennie Hilton. So far as the documentary evidence is concerned we start with the fact that a marriage existed between Sarah Hilton and decedent at the time of the latter’s death and also an existing marriage between Kizziah Hilton and Charles Clark, with whom she had been living since 1905. The presumption in favor of innocence requires us to assume that both marriages were valid: McCausland’s Est., 213 Pa. 189; Wile’s Est., 6 Pa. Superior Ct. 435.

To sustain their claim appellants undertook to prove the marriage between Kizziah Hilton and Charles Clark, and also the marriage between Sarah Hilton and decedent, were void. To accomplish this result Kizziah Hilton was called as a witness and testified she and Wallace Hilton were married at the home of his brother, George Hilton, on May 8, 1881, by a minister since dead; that the marriage was witnessed by three persons all of whom, with the exception of George Hilton, were dead; that a marriage certificate was given her but subsequently destroyed by Hilton and that they lived together in the marriage relation from 1881 to 1890, at which time they separated. George Hilton, brother of decedent, testified the marriage took place at his home, and that subsequent to that time the parties lived together as husband and wife. He also testified to having seen the marriage certificate and that it was signed by himself and others as witnesses and by the minister who performed the ceremony. Two witnesses testified to having seen the marriage certificate hanging on the wall in the home of decedent. Several other witnesses testified the parties lived together as man and wife and were recognized as such. A letter written by Hilton, in which he addressed Kizziah as his wife was also offered in evidence; likewise the record of a libel in divorce by Wallace J. Hilton against “Kasie” Hilton filed in 1893 in the Court of Common Pleas of Allegheny County showing the original subpoena was returned unserved and an alias issued but no further proceedings taken. The evidence of reputation as husband and wife is contradicted by a number of witnesses, -whose testimony was that, while the parties lived together for a number of years, the general reputation was that they were not married. The mere fact that they were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof of reputation for such purpose must be general and not confined to a few persons in the immediate neighborhood, as the relation may be es-' tablished merely for the purpose of deceiving others: Bicking’s App., S. C., 2 Brewster 202, 232. The evidence adduced of reputation was of little assistance to appellants’ case, even as corroborative of testimony of actual marriage. As to the latter, the two witnesses who testified to the marriage ceremony were interested in proving invalid the marriage existing between decedent and Sarah Hilton. Kizziah Hilton is contradicted, in addition to the testimony of other witnesses, by her acts and declarations covering a period of many years, during which time she was living as the wife of another man and, consequently, her testimony is entitled to little consideration, as, to sustain her claim, she must prove the illegality of her subsequent marriage and show she intentionally committed the crime of bigamy. Every principal of decency and morals, as well as of law, should combine to estop her from thus establishing a right by setting up her own wrong: Richardson’s Est., 132 Pa. 292; Wile’s Est., supra. The mere fact that decedent wrote a letter to Kizziah Hilton addressing her as his wife is entitled to little weight as evidence of marriage especially in view of the subsequent conduct of both parties in contracting a second marriage, assuming such to be the case. Nor does the fact that decedent at one time began divorce proceedings against Kizziah Hilton, which were subsequently abandoned, materially affect the result as the fact of abandonment of the proceedings might have been due to having received advice that a divorce was not necessary as no marriage in fact existed. - Every presumption is in favor of the validity of the marriage relation existing at the time of decedent’s death between him and Sarah Hilton, as well as the validity of the marriage existing between Kizziah Hilton and Charles Clark and a review of the testimony fails to convince us that the court below erred in its conclusion in holding the presumption was not overcome by the evidence submitted on the part of plaintiff.

The decree of the court below is affirmed.