Birchard's Estate

Per Curiam, The learned court below excluded the appellant from participating in the distribution of his wife’s estate for the reason that he had willfully and maliciously deserted her, and that he had persisted in such desertion for a period of more than one year prior to her decease. The act of May 4,1855, provides that a husband, who, for one year has willfully refused or neglected to provide for his wife, or who for that period has willfully and maliciously deserted her, shall have no claim upon her real or personal estate after her decease, as tenant by the curtesy, or under the intestate laws. There is no dispute about the law: the contention is - as to its application to the facts of this case. The appellant alleges that there was no such desertion as is contemplated by the act of assembly. This raises a question of fact which has been decided against the appellant by the learned judge of the court below. We think there was sufficient evidence of desertion to have submitted to a jury, and to have sustained a verdict against the appellant. It shows that when he was threatened with legal proceedings in the court of quarter sessions in and for the county of Philadelphia for the non-support of his wife, he consented that an order should be entered against him, and pursuant thereto he executed a bond to the commonwealth in which the fact of his desertion was distinctly set forth, and in which he bound himself to the payment of a weekly sum for the support of his wife. The appellant contends that this record was not conclusive evidence of the fact of desertion. If we concede this it does not help him. It was competent and persuasive evidence over which a jury would not long hesitate, and with the other evidence in the case was amply sufficient to justify the finding of the learned auditing judge. We think the appellant had no claim upon the estate of his deceased wife. The decree is affirmed, and the appeal dismissed at the costs of the appellant.