Pickens's Estate

Opinion by

Mb. Justice Fell,

The contest in this case before the auditor was between those claiming the personal estate of Samuel Pickens as descendants' of first cousins, and those claiming as children of Benjamin Obenstein, who it was alleged was a half-brother of the decedent. It was admitted that Benjamin Obenstein and Samuel Pickens were children of the same mother, that the father of the former was John Obenstein and of the latter Henry Pickens. The marriage of their mother to Henry Pickens was amply established by proof of cohabitation and reputation, and the question was whether she had previously married John Obenstein.

Benjamin Obenstein was born in 1806, and Samuel Pickens in 1812. Eighty-seven years had elapsed between the birth of the former and the time when the marriage of his parents was questioned, and there was no living witness or documentary evidence of either marriage. It was therefore a case in which pedigree could be proved only by hearsay, and it was clearly competent to prove it in that way. “ Common reputation in a family connection as to who are members of the family is admissible when no superior evidence is attainable, or, in connection with superior evidence, to prove pedigree, legitimacy and marriage.” Wharton’s Evidence, vol. 1, sec. 205.

The relationship of the persons who made the statements, their death, and the fact that the statements were made ante litem motam were established by competent testimony; and there was for consideration by the learned auditor only the sufficiency of the proof.

It was testified by witnesses not connected with the family, Isaac Zern and Leah Zern, that Samuel Pickens, some twenty years before his death, had introduced Benjamin Obenstein to them as his half-brother, and had afterwards spoken of him as his half-brother, and of his children as the children of his half-brother, and that he had said to them that his mother was first married to John Obenstein.

Susanna Obenstein, the widow of - Benjamin Obenstein and mother of the appellant, testified that at the time of her marriage she was told by her mother-in-law, Susan Pickens, that her first husband was John Obenstein, that they had two children, one of whom died and the other of whom was Benjamin Obenstein; that she and John Obenstein lived together three years, and that he died when Benjamin was quite young. She also testified that the previous marriage to Obenstein was frequently spoken of in the family, and the relationship of Benjamin Obenstein and Samuel Pickens fully recognized by both and by all the members of the family.

There is not one word in contradiction of this testimony, the effort of the appellees being directed to show the marriage of Henry Pickens and Susan Pickens. There is nothing in the testimony which suggests a doubt as to the legitimacy of Benjamin except the statement, said to have been made by Samuel PiGkens, that John Obenstein after the birth of Benjamin had gone away, and afterward returned when his wife was living with Henry Pickens, who had paid him to go away again. This statement must be- taken in connection with the declaration made at the same time that Susan Pickens had been married to John Obenstein before her marriage to Henry Pickens; and if illegitimacy is to be inferred from it the taint is not in the Obenstein line of descent.

In such an inquiry as this there is always a presumption in favor of marriage, which is strengthened by lapse of time ; and after ninety years it cannot be overcome except by strong, direct and satisfactory proof.

Benjamin Obenstein was admittedly the second child of a man and woman who had lived together for some time previous to his birth in 1806. There was testimony that his mother had said that she was married to his father, who died, and that she afterward married a second time. He was brought up in the house of her second husband, and treated as were the children of her second marriage, and retained the name of his father. He was recognized in the family as a half-brother, and this relationship was acknowledged and spoken of by the decedent, and he was treated as such until his death in 1880.

. The learned auditor held that, the marriage being denied,' the presumption of the legitimacy of the issue did not prevail, and that the burden of proof was upon the appellant, and that the proof offered was insufficient to support his claim. To sustain this finding he cited Commonwealth v. Stump, 53 Pa. 134. In that case there was no proof of an actual marriage, and all the facts established at the. trial rebutted the presumption of marriage until after the birth' of the children. There was cohabitation, but the reputation was that there had been no marriage. Upon the facts of that case this court held that proof of cohabitation alone, without reputation, was not sufficient to establish a marriage.

In this case the burden of proof, to establish his relationship to the decedent was upon the appellant, but he was not confronted with the presumption of the illegitimacy of his ancestor, and not required to disprove it. In the absence of all evidence the presumption was the .other way, and after this lapse of time could not have been removed except by clear proof. There was nothing in the admitted facts upon which his right prima facie rested, to suggest the illegitimacy of any one in either line of descent. Their common ancestor, Susan Pickens, had at different times lived with John Obenstein and Henry Pickens, and had borne children to each. The cohabitation with one commenced fully ninety years ago, and that with the. other a few years later. The last survivor of these persons died over thirty years ago. There was no distinct evidence of a marriage to either, but presumably she was the lawful wife of each. Such a presumption is entirely consistent with the facts as established by the testimony, but if conflicting presumptions arose that in favor of innocence and legitimacy would prevail. It was error to hold that the simple denial of marriage before the auditor, without a word of testimony upon the subject, imposed upon the appellant the burden of the proof of the legitimacy, of his ancestor. This burden however he accepted, and offered the only proof of which the subject was susceptible, which, although hearsay, was competent and conclusive. This was by evidence of statements made long before any litigation arose, by pérsons related to the family and now dead. These statements establish the first marriage, the cohabitation, the birth of issue, the death of the first husband, the second marriage, the birth of children by that, and the recognition, during the lives of all these parties, of the relationship between the decedent and the father of the appellant. This testimony throughout was clear, distinct and consistent, and no attempt was made to contradict it. The only doubt suggested was by the statement of Samuel Pickens that John Obenstein returned after the marriage of Henry Pickens to his mother and was paid to go away. It must be remembered that in the same connection he said that his mother had been married to John Obenstein, and that he was speaking of a matter of which he had no personal knowledge. There is nothing in this to give rise to the presumption of the illegitimacy of Benjamin Obenstein, and there is nothing else in the case upon which such a conclusion can be based.

We are of opinion that the fair conclusion from the whole testimony is that Benjamin Obenstein and Samuel Pickens were half-brothers, the legitimate children of Susan Pickens.

The assignments of error are sustained, and the decree of the Orphans’ Court of March 29, 1894, dismissing the excep-, tions to the report of the auditor, is reversed and set aside at the cost of the appellee, and the matter is referred back to the auditor that distribution may be awarded in accordance with this opinion.