Strauss's Estate

Opinion by Mr. Justice McCollum, The learned auditing judge found from the evidence before him, that Nathan Strauss was the husband of Sophia Strauss, the decedent, and his finding was confirmed by a divided court. It is conceded that if his finding in this particular was justified [569] by the evidence, the adjudication based thereon should be sustained. The brothers and sisters of the decedent, five in number, have appealed from the adjudication on the ground, as they allege, that the learned orphans’ court erred in deciding that she was the wife of Strauss. They admit that he was the father of her child, but they insist that it was illegitimate, although they must allow that the registration of its birth and the acknowledgments or admissions of its parents furnish some ground at least for an inference opposed to their contention. It would seem to the ordinary mortal that proper regard for the reputation of their sister would have induced them to relinquish their claim to the small sum in dispute rather than to engage in a contest in which their success depended upon showing her departure from the path of virtue and her resort to a false pretense to hide her shame. But while this was a matter proper for their consideration before inaugurating the contest it cannot be allowed to affect in any degree the decision of the question before us on their appeal. It is a question of fact determinable upon the evidence, oral and documentary. There is some conflict in the former; the latter is undisputed and includes the record of the birth of the child, the receipt for the burial expenses, tbe checks drawn by Nathan Strauss to the order of Sophia Strauss, her signature to the deeds, and the insurance effected' and maintained by Nathan Strauss on his life in favor of Sophia Strauss as his wife. In the record and papers referred to there is a clear recognition by the parties of the existence of the marital relation between them. Their acts and admissions thus evidenced are consistent with that relation and cannot be reconciled with any other without impeachment of their chastity and truth. The beneficial society of which Strauss was a member recognized and dealt with the decedent as his wife. All the testimony in the case is to the effect that after the birth of her child she was known to the narrow circle in which she moved as Mrs. Strauss. A brother-in-law of Nathan Strauss testified that about a year before her child was born she was so known to him and others in the neighborhood, and that Strauss told him she was his wife. His children by a former wife called her mother and received from her the con.sideration and care which her duty as the wife of their father imposed. If the admissions and representations made by the [570] parties in regard to the relation they sustained to each other were false and intended to deceive their neighbors, it is quite clear that her relatives, including the appellants, were participants in the fraud. They were willing that their sister while she lived should be known to her and their neighbors as the wife of Strauss, in order as they suggest, to conceal her wrongdoing, but now for the obvious purpose of appropriating the small estate she left for distribution under the intestate laws, they repudiate the claim they sanctioned in her lifetime and allege that her relations with Strauss were illicit. We think it is clear that their change of position and the motive which prompted it, were not well calculated to lend strength to and inspire confidence in their testimony. All the written evidence was adverse to their contention and the natural inferences from it supported the marriage. It was for the auditing judge to consider the oral testimony in connection with the written, and from all the evidence before him to ascertain the facts. The-law favors marriage: 14 Am. & Eng. Ency. of Law, 520, and cases cited. It is a civil contract and in civil cases, at least, reputation and cohabitation are sufficient evidence of it: Senser v. Bower, 1 P. & W. 450; Thorndell v. Morrison, 25 Pa. 326; R. R. Co. v. Hall, 61 Pa. 361; Hanna v. Phillips, 1 Grant, 253 the admissions of the parties of the fact of their marriage are in the nature of direct proof of it: Greenawalt v. McEnelley, 85 Pa. 352. In the light of these well settled principles, we think the evidence was sufficient to sustain the finding of the auditing judge that Strauss was the husband of the decedent, and to authorize the adjudication based thereon. Decree affirmed and appeal dismissed at the cost of the appellants. Sterrett, C. J., and Mitchell, J., dissent and would reverse for the reasons given in the opinion of IlANNA, P. J