Phillips's Estate

Citations

• 271 Pa. 129
• 114 A. 375
• 1921 Pa. LEXIS 468

Syllabus

<p>Wills — Election by husband to talce against will — Wilful and malicious desertion — Presumption from court record — Nonsupport —Husband and wife — Act of June 7,1917, P. L. J¡-29.</p> <p>1. Mere separation by mutual agreement or consent is not desertion.</p> <p>2. The record of the quarter sessions in a proceeding for nongupport and desertion, although persuasive evidence in a collateral proceeding to show desertion, is not conclusive thereof.</p> <p>3. While the fact of desertion without cause or consent will be presumed to be wilful and malicious, within the meaning of the Act of June 7, 1917, P. L. 429, excluding husbands from participation in their wives’ estates for nonsupport and desertion, such is not the case where there is sufficient evidence to justify a finding that the separation was with the consent of the wife and practically at her instance.</p> <p>Evidence — Witness — Party dead.— Husband and wife — Acts of May 28,1887, P. L. 158, and June 11,1891, P. L. 287.</p> <p>4. Where a husband claims an interest in his wife’s estate, and a daughter opposes the claim, alleging desertion by the husband, it is error, under the Acts of May 23, 1887, P. L. 158, and June 11, 1891, P. L. 287, to permit the husband to testify to matters occurring between him and his wife and not in the presence of the daughter, nor within the scope of her testimony.</p>