Wilkinson's Estate

Citations

• 213 Pa. 117
• 62 A. 567
• 1905 Pa. LEXIS 387

Syllabus

<p>Will — Probate—Marriage—Legitimacy—Evidence.</p> <p>On a petition to set aside the probate of a will, the petitioner alleged that she was a daughter of the decedent entitled to participate in his estate. The marriage of the decedent and the petitioner’s mother was denied. The only direct evidence of the marriage was that of an inmate of an old woman’s home who did not know how old she was, but who testified in 1902, to a marriage between testator and petitioner’s mother at sometime she could not remember, but assenting to a suggested date of 1857, 1858 or 1859, at a house where the witness was then living as an indentured servant. She had not seen the testator since the marriage, and she professed to identify him by a photograph taken thirty odd years after she last saw him. The alleged wife she had never seen before or since, and she identified her from a photograph (when taken not shown) “only by the way her hair is fixed and the earrings and the ugly mouth.” The witness did not remember the justice of the peace who performed the marriage ceremony. She remembered the name of the owner of the house, and that some of his family were present at the wedding, “some in the garret and some down in the cellar. ” Public records produced in evidence showed that the witness’s apprenticeship had expired ten or eleven years prior to the date of the alleged marriage, and several members of the family referred to by the witness testified that they never knew the testator nor petitioner’s mother, and that no such marriage ever took place in their house. There was evidence that in 1864 the testator married another woman and lived with her as his wife until her death, and in the same year the petitioner’s mother married another man. There was no evidence of a divorce. Held, that the evidence was insufficient to go to a jury on the question of the petitioner’s legitimacy.</p>