Johnson's Estate , 1922 Pa. Super. LEXIS 58 ( 1922 )

Opinion by

Linn, J.,

Decedent’s sister appeals from the allowance of the exemption claimed by her brother’s widow, under sectiqn;12 of, the Fiduciaries Act.of 1917, P. L. 447,. 471, contending, that, by, desertion .the - widow., forfeited her rights. The, decision, turns on, the,¡sufficiency of the- evidence. ;¡,-. The: n.ourt below, heldK there. was * no: desertion, and we. agree. Appellant relies on the fact that nearly thirteen months before decedent’s death, his wife moved from the house in which they, had, beep living, and never returned.. .The widow; has,,justified,her .condqct.,, We accept the evidence to the effect that appellant successfully conspired with her brother to separate,.him, from his wife and family. It is well settled that such; separation does not deprive a widow of her exemption.. It was long ago held that a nam may not turn his wife out of doors; our statute against it is a municipal regulation for the protection of the community as well as the wife: McDermott’s App., 8 W. & S. 25l, 256.

Decedent died October J6, 1918, living in the home of his sister, the 'appellant. His family, composed of his wife, son and the son’s wife, separated from him on Septémber 25,191L Decedent arid his wifewere married in 1890, and in 1892 became tenants on án eiglitytwo-acre farm belongirig to appellant; they occupied an eight-room house and farmed the place- In Í910 decedent' had- a paralytic stroke which seriously incapacitated him, and after about 1914, left him So feeble he was practically unable to work. He owned a house in Milton/Pa.y rented- for' $16’ a inOrith.' They had a son, who before and after his marriage, assisted in- the farming, lived in the house with them, and helped support decedent until the separation; - Such additional support as. decedent required for some time prior to the separation, was furnished by his- wife, who hád some livestock and a truck patch producing income. There is abundant evidence .that the widow gave decedent rib cause for complaint. If we may judge from the fact that shortly after; the separation-he ,confessed- judgment, in favor,of appellant in a sum in excess, of flhe value of,all his property, he was probably insolvent before the separation.

For fourteen years, prior to the separation,.,appellant a.nd the Avidowwere estranged. ,,Appellant testified her brother was ¡“very, feeble”,, find not.,“competent-and able to, maintain, and? care for,, hjmselfJ’; •. ■ She,:Jived; on .an? other farm owned, by ¡her in fhe vicinity. She testified that about four days before, the separation, she, ¡caused the sheriff to serve anptice.upon her, brother “on the. fob lowing Wednesday’’ to vacate the premises; ¡ occupied since 1892. ^ She said ■ she .had rented the farm-to another tenant who would occupy another house,on the farm, so. that the, use. of ¡.the., house occupied by her brother w.as not, required fpr the. new. tenant. She also sgid that, when, she,rented tifie farm flo ¡the;other tenant, she. agreed,,with,her.,brother, flfiat he and his* family might occupy oneThalf of the eightmoom house in which they, had, always lived, and she, the appellant,, would occupy .the other, halfj .each to have two rooms on the first, floor and two on the second, She testified she gaye this,notice flo quit at the,request of her brother., The sheriff. appeared, and read the notice flo her brother, Whose comment Avas “it. is all right, [appellant],,¡knows Avkat she is doing.” ¡¡The.notice was nob left Avith him, and the,record* does ;not contain, a copy. Appellant states she Avished to move into the other half,of the house in order to, flake carp ¡of. ¡her brother, although there-is ample evidence that -he had been properly cared for by his wife.

The widdow testified that in June, 1917, appellant “came up to my house .and abused-mb ¡and shqflook my husband on the porch and .said ‘you stand, by me and. I. wilj stand by.youVand hephqohfliis.hoad and that ¡was turning my ¡husband agaipst p¡$” ..The widow never saw the notice served by the sheriff but was told of it, where upon she consulted, counsel who advised her to move, away from the house if appellant came to live there. Accordingly on the day designated by the notice to vacate, the widow, her son and daughter-in-law moved to a house about a mile away. Before leaving, both the widow and their .son attempted to persuade decedent to go with them, stating that they would take care of him as he required, but he refused to go. She explained to him that she “could not stay in that house if his sister came there......” As soon as the widow moved out, the appellant came in, and thereafter took care of her brother, — in that house until June, 1918, and thereafter until his death, in her own house.

In September, 1917, decedent’s condition was such that his wife’s services and her contribution to his support were necessary to the maintenance of the family relation; into that family relation, happily maintained, this appellant interjected herself without apparent reason and against the protest of the wife who alone had kept and could keep the family together. After the estrangement indicated, and appellant’s conduct pursuant1 thereto, she cannot have expected that her sister-in-law would tolerate her under the same roof for the purpose of caring for the husband, and he must be held to have intended the same result, for he refused to go with his wife, notwithstanding her reasonable requests and her warning that she could not have decedent’s sister live in the same house for causes he understood.

In Moore’s App., 8 Penny. 110, a separation caused by “the evil influence of mischief-making relatives” did not forfeit the claim for exemption. It is unfortunate that in his helpless condition, decedent was persuaded to unite with his sister in directing the sheriff to notify him to vacate their home of twenty-five years; his agreement with his sister to occupy one-half of the house with her in the other half does not save the situation. He was not then in any potential sense the head of the family, but physically unable to do anything alone, and dependent upon his family for sustenance; his wife could not be expected or required to divide her care of her husband with a conspiring sister-in-law. We cannot hold that the wife was not justified in concluding that it was the purpose of the husband t'o turn her out of doors. We are not concerned on this record with the effect of the wife’s failure at the time legally to assert her rights against the mischievous intrusion of appellant. It is sufficient that enough appears t'o sustain the conclusion that she may have her exemption.

The assignments of error are overruled and the order appealed from is affirmed at the costs of appellant.