In re Estate of Comly

Opinion by

Mb. Justice Williams,

The facts brought to our attention by this record are of a very unsavory sort; but a question is raised upon them which compels their consideration. The estate of Joseph H. Comly has been settled by Eleanor P. Comly, the administratrix, and the fund raised is now for distribution. A woman appears alleging that she was the wife of the decedent, having been married to him about ten years before his death, and having cohabited with him during these years. The marriage set up was not solemnized in the usual manner, but was entered into by a verbal contract made, as is alleged, between the claimant and Comly that they would take each other for husband and wife respectively, until death should separate them. She testified distinctly to the making of the marriage contract, that Comly provided and furnished for her a house in which they lived and cohabited, that a child was subsequently born to them, and that he had openly acknowledged her to be his wife on many occasions, and the child to be his child. There was much evidence given in the court below tending fo discredit this story, and lead to the conclusion that the relation between Comly and the claimant was a meretricious one. There was on the other hand considerable evidence that was fairly corroborative of the testimony of the claimant, and that tended strongly to show that Comly had recognized and spoken of the claimant as his wife on many occasions, and had recognized the child born after the alleged marriage as his own. If this evidence was competent its value was to be determined by the court below by which it was given, and from it that court was to find whether the claimant was the widow of Comly entitled to share as such in his estate, or was an impostor having no claims whatever upon it. The assignments of error from the sixth to the tenth inclusive are directed to the rejection of offers to show that prior to the alleged marriage with Comly in October, 1885, the claimant had lived in illicit relations with one William Conn and otner persons. This evidence did not tend to contradict her story of the marriage with Comly, and it seems to have been offered for that purpose. Her fidelity to Comly during the ten years between the alleged marriage and his death was not attacked. She lived during these years in a home provided by him, cohabited with him, and was known in the circle in which she moved as his wife. Her previous misconduct could not diminish the value of these circumstances and when offered for that purpose was properly' rejected. The remaining assignments allege error in the court below in finding as a fact from all the evidence that the marriage between the claimant and Comly actually took place as claimed by her. There was evidence properly before the court from which this finding could be made. There was also a mass of circumstances shown by the testimony that seemed to indicate that the relation existing between these parties was an illicit one. The court below had the witnesses before them and could judge of their credibility. They have after a careful consideration of all the testimony given- credit to the claimant. We are asked to say that this was error. It certainly was not a mistake in law. If it was a mistake in reaching a conclusion of fact the burden is on the appellants to point out the mistake clearly. It is-not enough to demonstrate that the fact is doubtful. It is not enough that the finding appears to be against the balance of the testimony. Nor yet is it enough that we may think we would have reached a different conclusion if the question had been for us to decide in the first instance. The court below had, as we have not, the witnesses before them, and were therefore better able to say to whom credit ought to be given and from whom it ought to be withheld, than we can be. Their findings of fact must stand therefore until the appellant shall point out to us clearly the mistake of which he complains.

We are unable in view of these considerations to reverse the findings of the orphans’ court and for this reason the decree resting on their findings is affirmed. The costs of this appeal to be paid out of the fund.