Thorn's Estate

Ladner, J., — Of the 64 exceptions filed, exception nos. 3, 4, 5, 6, 7, 8, 9,10,14,15,16,17, 20, 28, 29, 30, 31, 32, 33, 44, 45, 52, and 59 relate to the learned auditing judge’s fact findings or refusal to make findings of fact on the evidence produced before him. The well-established principle governing the disposition of such exceptions is well stated by Judge Hunter in his Commonplace Book, vol. 2, p. 964, sub-div. 12 (a), to be as follows: “Findings of fact by an auditing judge, like the verdict of a jury, will not be disturbed unless clear error be shown, and if there be sufficient evidence such findings will stand, even though another judge might have reached another and different conclusion. To justify a reversal there must be manifest error or the inferences and conclusions unwarranted.” (See cases there cited and in the Cumulative Pocket Supplements attached thereto.) The learned counsel for exceptants has not in his brief, nor at the argument, directed our attention to the evidence which he conceives to be insufficient to support the specific facts, nor the inferences therefrom found. Even if we do not regard this as an implied withdrawal of these particular exceptions, it is plain the duty of exceptants to convince us there was clear error in the auditing judge’s findings has not been discharged. These exceptions are therefore dismissed. Exceptions nos. 26 and 27 charge error in the action of the auditing judge in striking from the record [686] and refusing to admit in evidence a letter. These exceptions read: “26. The learned auditing judge erred in ruling that letter (R. F. Ex. E.) was properly objected to, and that it be stricken from the record. “27. The learned auditing judge erred in failing to admit the letter (R. F. Ex. E.) in evidence.” These exceptions are manifestly not self-sustaining and are in improper form. In Desiderio’s Estate, 35 D. & C. 450, at page 451, we indicated the proper form exceptions of this character should take, and our reason for insisting on conformance therewith. We need not repeat what we there said. We dismiss these exceptions and do so with less regret after examining the letter and the reasons given by the learned auditing judge for his ruling as set forth in his adjudication which we approve. Exception 51, which reads: “51. The learned auditing judge erred in admitting testimony of claimants’ mother to establish their acknowledgment by Bullock”, is likewise in improper form. See Desiderio’s Estate, supra. Nor do we find any merit in the same. It is, therefore, dismissed. The rest of the exceptions are reflected in the three questions involved as set forth in exceptant’s brief. These may be summarized as follows: Exceptants being entitled under testator’s will to take in default of issue of the deceased life' tenant (Bullock) contend that the children of said life tenant were born illegitimately, and therefore not entitled to take, notwithstanding the subsequent marriage of their parents: (1) Because their father’s divorce from his first wife was not validly obtained because of lack of jurisdiction and fraud, and (2) that even if the divorce was valid, the legitimation of the children after the death of the testator, George W. Thorn, was ineffective. [687] All of these contentions were resolved against ex-ceptants. The auditing judge’s comprehensive and learned adjudication so amply vindicates his rulings under the facts found by him that we can add little with profit thereto. The issue here is not between Bullock, whose reprehensible conduct no one would justify, and his unfortunate deceased first wife. The issue is whether claimants are legitimate or illegitimate. We observe that for sound reasons of public policy the presumption and charity of the law are in' favor of legitimacy of every child, and whoever seeks to bastardize it, must establish the illegitimacy by proof that is clear, direct, satisfactory, and irrefragable. The presumption of legitimacy is not to be shaken by a mere balancing of probabilities: McAnany’s Estate, 91 Pa. Superior Ct. 317. Under this beneficent principle, we feel the learned auditing judge was justified in not drawing any adverse inferences from the documentary evidence which he was not impelled to draw. In the last analysis, the whole case of exceptants depends upon their contention that a fraud was committed by the deceased life tenant when he filed an affidavit in his divorce action to the effect that the residence of his wife was unknown. Exceptants contend this affidavit was false but, to establish the falsity, they must do more than show he should have known, ■ or could have- by reasonable diligence ascertained it. The letters and documents relied upon by exceptants to establish the fact of knowledge do not impel any such inference, and this was clearly demonstrated by the learned auditing judge whose convincing reasons we do not deem necessary to repeat. Since, therefore, exceptants failed to prove by satisfactory proof that the affidavit filed by the deceased life tenant was false, it serves no purpose to discuss whether or not the auditing judge was right in ruling in addition that even if the affidavit was false, the divorce decree could not [688] have been attacked collaterally here for such irregularity because the decisions of the State of Indiana forbid such a collateral attack there. Apparently, under the most recent pronouncement of the United States Supreme Court in Williams et al. v. The State of North Carolina, decided May 21, 1945, not yet reported but appearing extenso in The Legal Intelligencer of May 24,1945, the full faith and credit clause of the Federal Constitution requires the acceptance of a divorce decree so long as the court in which the decree was entered had jurisdiction of subject matter. Said the United States Supreme Court: “The domicile of one spouse within a state gives power to that state, we have held, to dissolve a marriage wheresoever contracted.” But the domicile must be bona fide, and the bona fides of the domicile is open to challenge by a collateral attack in the court of another State, and should that court find as fact on sufficient evidence the residence was not bona fide, the decree ceases to have the protection of the “full faith and credit clause”. In this case there is no proof nor even a pretense that the deceased life tenant, Bullock, was not a bona fide resident of the State of Indiana in which he commenced his action in divorce. He had lived there and was employed there years before the commencement of his divorce action. He continued to live there afterwards and until his death. In this aspect the case before us is far different from Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, affirmed by the United States Supreme Court on May 21, 1945 (not yet reported), and the Williams case, supra, where libellants went to Nevada, remained only long enough to establish the six-week’s residence required by the law of that State, left after the completion of the proceedings and decree was pbtained, and then returned to their former domiciles. We are inclined to think that the auditing judge was right in holding that matters of service of process [689] cannot be inquired into by a foreign State where the State decreeing the divorce has acquired jurisdiction by a bona fide residence of one spouse, but as previously indicated, since the falsity of the affidavit was not established, it is unnecessary now to discuss that proposition. The other question raised by the exceptions is, whether the legitimation of the life tenant’s issue, after the original testator’s death, entitled such issue to take? We agree with the auditing judge in his ruling that the deceased life tenant’s children having been legitimated by the law of Indiana, the State of their father’s domicile, their status as such must be given recognition in every other State. See A. L. I. Restatement of Conflict of Laws §§140,141, a principle recognized in our own court in Moretti’s Estate, 16 D. & C. 715. We also agree that, under the law of this State, children who are legitimated by a subsequent marriage are entitled to take under the bequest to issue where they are legitimated at the time the bequest becomes operative: McCausland’s Estate, 213 Pa. 189 (1906); Schumacher’s Estate, 41 D. & C. 100; Miller’s Appeal, 52 Pa. 113. Exceptants rely much on Foster’s Estate, 39 Montg. 109 as holding to the contrary, but that case was decided upon the language of section 15(d) of the Intestate Act of June 7, 1917, P. L. 429, and applies to intestates only. The applicable law to this case is the Act of May 14,1857, P. L. 507, sec. 1,48 PS §167, which reads: “In any and every case where the father arid the mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents”. All the exceptions are dismissed and the adjudication is now confirmed absolutely.