Estate of Luce , 1897 Pa. Super. LEXIS 13 ( 1897 )

Opinion by

Beaver, J.,

The petitioner, who is the appellant here, is a competent witness: Drinkhouse’s Est., 151 Pa. 294. Was she a credible witness ? If she were and she and the decedent, whose widow she claims to be, were in law capable of making a marriage contract in 1876, she is undoubtedly the widow of Charles E. Luce. She testifies distinctly and circumstantially not only to a contract of marriage but to a marriage ceremony performed by a clergyman in the presence of two witnesses, of which she subsequently received a certificate in due form. This contract, if it were made, and this formal ceremony, if it took place, were unquestionably followed by eighteen years of continuous cohabitation. As to this there is practically no dispute. It was continued through all the stress and strain of hard work, poverty and sickness, in which the wife — if she were a wife— bore her part heroically, without complaint and with unfailing devotion to and affection for her companion. Her affection was undoubtedly reciprocated, and the attending physician in the last illness of the decedent speaks of it as unusual. The decedent was only deterred by the embrace of death from completing an effort to show his affection for his companion by a last embrace. All this we are aware is entirely consistent with other relations than those of husband and wife, and we speak of it only as being rather more consistent with the relation which, if the witness be credible, was established at the marriage ceremony which took place at the residence of the Bateheldors, in their presence, performed by the local preacher who happened to be present in pastoral visitation upon a sick member of the family. We might discuss the question of cohabitation and reputation, but to no profit. Was the witness credible? If she were, it is not necessary to discuss them. Who is to judge of her credibility and of the probability of the circumstantial narration of all the facts attending the relation of the parties which led to the marriage contract, and the ceremony which consummated it ? As we view the case, this was to be determined by the adjudicating judge who saw the witness upon the stand, who could not fail to be impressed by the manner as well as the matter of her testimony, and who under the circumstances of this case had better opportunities of weighing it and the other testimony in the case, under all the conditions of environment, which have so much to do in determining the weight of oral testimony, than have we or anyone else. What credence was to be given to the testimony of Frank E. Luce and Hannah Luce? There are undoubted inconsistencies and peculiarities in their testimony. What was their manner on the stand? How did they bear themselves rrnder cross-examination? How did their conduct affect their credibility? Are they to be believed or disbelieved ? Is their testimony to be regarded or excluded? All this must be passed upon by some tribunal. Ordinarily it would be for a jury, but here we have no jury. Who shall pass upon it ? Who can safely pass upon it but the adjudicating judge ? The rule upon this subject is founded in reason and should be adhered to, unless there are erroneous deductions drawn from practically undisputed facts. It may be conceded that, if the facts of this case had been submitted to a jury for its finding, the verdict might have been either way, and a verdict found either way could have been consistently sustained, the turning point in the case being the credence which should be given to the testimony on the one side and the other, and such credence we feel, after a careful reading of the entire testimony, depended largely upon the manner of the witnesses, their candor, their intelligence and their memory. The rule, therefore, of Sheehan’s Estate, 139 Pa. 168, of Drinkhouse’s Estate, 151 Pa. 294, of Strauss’s Estate, 168 Pa. 561, admitting and giving full weight to what is said in regard to it in Kittel’s Est., 156 Pa. 445, should be applied in this case, and the finding of the adjudicating judge should be sustained, largely for the reason that he had the best opportunity for reaching a satisfactory conclusion as to the facts involved.

We have not alluded to the finding of the register, for the reason that the hearing before him does not-seem to have embraced the important and essential facts which were elicited in the hearing before the adjudicating judge.

The decree of the court below is, therefore, reversed at the cost of the appellee, and the record is remitted to the orphans’ court of Philadélphia, with the direction that the letters of administration heretofore issued to Frank E. Luce, the respondent below, be revoked, and that the register be directed to issue new letters to the petitioner, who is the appellant here.