Gearing v. Gearing.

the respondent [libellant]." This point was refused. To have charged as requested would have withdrawn the consideration of the issue from the jury, notwithstanding the evidence of conduct on the part of respondent calculated to render the life of an ordinary man burdensome and intolerable, but aggravated in the case of this libellant by his employment in the navy and their life in naval stations where knowledge of her conduct was known to his fellowofficers and the members of their families.

The 5th point: "If you believe that the respondent made certain accusations against the libellant as alleged by the libellant, then you must be satisfied by the weight of the evidence that she made them with the intention of burdening his life." Under our laws, the question is whether the acts of the respondent had the effect of making life burdensome. To affirm this point would require libellant to prove that respondent had a specific intent that her conduct should have this effect.

The 6th point: "If you believe that the libellant had inflicted upon his wife such injuries as would be ground for divorce against him were she to apply for one on the ground of cruel and barbarous treatment and indignities to her person, then the court charges you that in this case you must find for the respondent." This point was properly refused. The issue tried by the jury was whether the respondent had been guilty of cruelty or indignities. The defence of recrimination was not a proper one in this case under the pleadings and issues. The law of recrimination is stated in 7 Corpus Juris, 116: “As a general rule, recrimination, to be available as a defence, must be set up in the answer. The misconduct must be set up in the answer with the same particularity as to time, place and circumstance as is required in a complaint for divorce on the same ground." In Jackson v. Jackson, 49 Pa. Superior Ct. 18-24, it was held in effect that recrimination, to be available as a defence in divorce, should be alleged in the answer and included in the issues submitted for determination by the jury, citing with approval, Weimer v. Weimer, 1 Pearson, 539. The recrimination in those cases was adultery, which is specifically mentioned as a defence in our divorce laws; but recrimination is a defence charging misconduct upon the part of the libellant, and he should have notice by the pleadings of the charges he is to meet at the trial.

The 7th point: "Under the law of the State of Pennsylvania, our courts have no jurisdiction in a divorce case, unless the libellant has resided in the state one year with an actual intent to make this his home. Then his intent is called domiciliary intent and it must be accompanied by actual residence herein for this period. Domiciliary intent is shown by actions amounting to an abandonment of any former home and that [abandonment] the libellant must have coupled with an intention to permanently reside here and make this his home. There is no such thing under the law of our state in a divorce case as constructive residence. It must be actual, that is, an intent to make this his real and actual home. Therefore, if you find under the evidence that the libellant had no actual intention of making Philadelphia his permanent home, but merely lived or resided here by reason of his connection with the navy, and that [if] you also find that he did not reside here for one full year prior to the filing of his libel in divorce and that he did not reside here for a period of one year, [that] it was without intent and the only purpose for doing that was to establish a constructive or legal residence for the purpose of this suit, then the court charges you that you must find for the respondent."

This point was properly refused, for the reason that the question of jurisdiction is primarily one for the court, and where, as here, the testimony of the libellant as to actual residence and intention to permanently reside here was

Gearing v. Gearing.

undisputed, it would have been improper to submit this as a question of fact to be determined by the jury. "The question of jurisdiction is to be decided by the court, although where it is dependent upon questions of fact, the jury may, subject to the direction of the court as to matters of law, affirm or deny jurisdiction by a general verdict:" 15 Corpus Juris, 851.

The 8th point: "Under all the evidence, your verdict should be for the respondent," was properly refused. If respondent were entitled to this charge, the court would be required to enter judgment non obstante veredicto. The reasons assigned for refusing that motion justified the refusal of this point at the trial.

The 9th point: "If you believe the testimony of the defendant, Mrs. Gearing, as to the acts of cruelty and indignities suffered by her at the hands of her husband to be such as would be proper grounds for divorce by her, and her testimony in this respect has not been denied by him, then your verdict must be for the defendant."

This point was properly refused for the reasons assigned in the disposition of the 6th point for charge. The husband's conduct was not in issue under the pleadings or issue as framed by the parties. The questions submitted to the jury, and the only questions involved in this case, were whether the respondent had been guilty of cruelty or indignities.

The 5th, 6th and 7th reasons assigned in support of the rule for a new trial are directed to the charge of the court. A reading of the charge fails to indicate that it was unfair or that it did not adequately present to the jury respondent's contentions and her defence to the action.

And now, to wit, June 15, 1926, the motion to dismiss the libel for want of jurisdiction is overruled. The motion of the respondent for judgment non obstante veredicto is refused, and the rule for a new trial is discharged. An exception is hereby noted for the respondent.

Finsterer's Estate.

Wills-Devise-Gift to wife for life-Remainder to testator's heirs and next of kin.

Where testator gives his property, consisting of real estate, to his wife for life, and directs that upon her death it shall be sold and one-half of the proceeds shall go to his wife's heirs-at-law or next of kin and the second half to his own heirsat-law or next of kin, the wife does not take any part of the second half of the proceeds as an heir-at-law or next of kin of her husband, but upon her death it goes to the testator's heirs-at-law.

Exceptions to adjudication of HENDERSON, J. O. C. Phila. Co., Jan. T., 1924, No. 495.

From the record it appeared that testator died in 1892, leaving to survive him his wife, Marie, but no children. The widow subsequently married Charles C. Mayer, and died on Sept. 8, 1908, without issue, leaving her second husband to survive her. John Finsterer, testator, owned the premises No. 2424 North 5th Street, in Philadelphia. By his will he gave and devised all of the residue of his estate to his wife for life, and then directed as follows: "Immediately after the decease of my said wife, I do order and direct that the said rest, residue and remainder of my said estate . . . shall be converted into cash, which shall be divided into two equal parts, one of which said equal parts I give and bequeath to the heirs-at-law or next of kin of my said wife Marie, and the other equal part thereof I do give and bequeath unto my heirsat-law or next of kin."

Finsterer's Estate.

Henry P. Orlemann, administrator c. t. a. of Charles C. Mayer, husband of Marie, claimed the proceeds of the second half on the ground that Mayer's wife was an heir-at-law of her first husband. The Auditing Judge refused the claim and awarded the second half of the proceeds to the testator's nephew, his sole heir-at-law.

Springer H. Moore, for exceptant; Matthew L. Barrett, Jr., contra.

GEST, J., Nov. 20, 1925.-The adjudication of the Auditing Judge is in accordance with the decision of Judge Penrose in Keys's Estate, 4 Dist. R. 134, and Keys's Estate (No. 1), 4 Dist. R. 281. The gift in that case, indeed, was made simply to the heirs of the widow at her death, while here the gift is to her heirs-at-law or next of kin, but the difference would appear to be immaterial under Serfass v. Serfass, 190 Pa. 484.

The exceptions are, therefore, dismissed and the adjudication is confirmed absolutely.

THOMPSON, J., was absent and VAN DUSEN, J., did not sit.

Schroeder v. Schroeder.

Divorce-Master-Duty of master-Duty to examine answer-Former suit. 1. In divorce suits the Commonwealth or the public is always an unnamed third party to the proceeding, and on its behalf the courts or the master will take up the investigation of any fact properly averred whose determination is material to the issue.

2. It is the duty of the master to examine the answer filed by respondent, even though no proof is offered to support it and the respondent does not appear at the hearing.

3. If the answer refers to the testimony of libellant in a former and unsuccessful suit for divorce in the same court, and the master, upon examination of the record in the former suit, finds libellant's testimony in such suit is contradictory to her testimony before him in material and essential particulars, he is justified in recommending that the libel be dismissed.

4. In such case, the mere fact that the court permitted libellant to discontinue her former suit and withdraw the proceedings, does not prevent the master from examining the record and testimony in such suit.

Divorce. Exceptions to report of Bertram J. Murphy, master. C. P. Berks Co., Jan. T., 1925, No. 66.

Silas R. Rothermel, for libellant; Paul H. Price, for respondent.

RICHARDSON, J., Oct. 19, 1925.-This divorce case is before us on exceptions by libellant to the report of the master recommending that the libel be dismissed. The ground alleged in the libel is wilful and malicious desertion by respondent. The master found no adequate proof of such desertion, but finds in his report that ". . . viewing the testimony as a whole, the great preponderance is in favor of the conclusion that, if the libellant did not actually expel her husband from the common domicile without cause, he left by and with her consent and expressed wish. This was sufficient to repel the inference that his separation from her was wilful and malicious desertion, and, therefore, to defeat her application for divorce, there being no subsequent bona fide offer of reconciliation from either party." To this finding libellant excepts. After a careful examination of all the testimony and the whole record in this case, we are of opinion that we must sustain the findings of the master, follow his recommendation and dismiss the exceptions to his report. It is

Schroeder v. Schroeder.

clear that the evidence in this case is not legally sufficient to establish the ground of divorce alleged in the libel with the degree of conclusiveness required in order to warrant a decree. It may be a hardship upon libellant to withhold it. But the court has no power to grant it except upon legal and adequate evidence.

The report of the master in this case shows a full realization on his part of the responsibilities of his appointment and a careful and conscientious discharge of his duty to the court. On the other hand, we are also impressed with the very able and skillful argument set forth in the brief of libellant's counsel. We agree with the master that it was his duty to examine the answer filed by the respondent in this case, even though no proof was offered in support of it, and even though respondent did not appear at the hearing. Akers v. Akers, 22 Pa. C. C. Reps. 550, 8 Dist. R. 419, is conclusive authority on this point. In divorce suits, unlike ordinary litigation, the Commonwealth or public is always an unnamed third party to the proceeding, and on its behalf the court, or the master appointed by it, will take up the investigation of any fact properly averred whose determination is material to the issue.

The answer filed in this case referred to previous testimony of libellant in an unsuccessful suit for divorce brought by her in this court against the very same respondent as in this case, in Schroeder v. Schroeder, March Term, 1921, No. 3, A. D. The answer averred as a fact that in the foregoing proceeding in 1921 the libellant did not assert or declare that respondent had deserted her, but that she testified under oath that on Sept. 27, 1920, which is the very day alleged as the day of desertion in this proceeding, she told respondent to leave and telephoned to him at his place of employment that he would find his clothing in the back yard of his house and that he should not again return to their home.

In view of this averment in the answer, it was certainly proper for the master to examine the testimony and the record in the previous divorce suit in 1921 between these same parties. The mere fact that on Dec. 5, 1921, after the master in that case had recommended a dismissal of her libel, the court permitted her to discontinue her suit and "withdraw said proceedings" does not prevent the master from examining said record and testimony. The order of the court did not authorize the withdrawal of the master's report from the files of this court. It is before us now and was properly considered by the present master. This is not like the case of Coolidge v. Coolidge, 4 Pa. C. C. Reps. 374 (1887).

Counsel for libellant practically admits, and the testimony of libellant in both proceedings certainly proves, that libellant, on Sept. 27, 1920, telephoned to respondent that he would have to leave and that his clothing would be put in the back yard. It is admitted also that, two days later, libellant delivered respondent's clothing to a deliveryman. Libellant admits in this proceeding that she telephoned to respondent on the day of his alleged desertion, but she says she only told respondent to "bring the rent home." In view of her previous testimony, the master very properly concluded that this testimony of libellant was not entirely accurate. Certainly it could not be reconciled with her previous statement that "I told him to leave me. I told him not to come back, that he would find his suit-case out on the back porch."

Libellant attempts to explain this testimony by saying that in 1921, when she so testified under oath, she was not responsible and was a physical and mental wreck, and that she was much disturbed by the questions of respondent's attorney. She does not deny that she so testified, but she contends that what she then said was not correct. In our opinion, what she said in 1921,

Schroeder v. Schroeder.

only a few months after the separation, is more nearly correct than what she now says in 1925. Her counsel argues with much force that, even admitting she told respondent not to come back, her statement should not have been acted upon by respondent because, he says, it was made in the heat of a raging and violent quarrel. But the evidence fails to show such a heated and raging quarrel. There was a quarrel about money matters two days before libellant told respondent to leave, but no particular quarrel the day before, and none on the very day she telephoned to him. In fact, he was at work, and there was ample time and opportunity for libellant to cool off and consider the full meaning of her resquest that respondent should not come home and that she would not let him in the house.

The former master concluded that respondent's conduct was not such as to justify libellant in telling him to go or turning him out. There is not sufficient evidence before us from which we can conclude otherwise. The record shows that much of libellant's testimony regarding respondent's intemperate habits and his ill-treatment of her relates back to a period six years prior to the present separation, it being admitted that her husband's conduct was vastly improved since 1914.

In our opinion, the finding of the master and his conclusion that there was no wilful and malicious desertion in this case must be sustained.

And now, to wit, Oct. 19, 1925, the exceptions to the report of the master are dismissed and his report affirmed, a decree to be entered that the libel be dismissed, at costs of libellant.

From Charles K. Derr, Reading, Pa.

McFadden et ux. v. Stamm.

Imprisonment under process in civil action-Discharge-Act of July 1, 1915, P. L. 704.

A person held under process issued on a judgment obtained in a civil action will be discharged when it is shown by the testimony taken under a rule for his discharge that he was without means to pay the judgment, that he had not secreted or assigned his property to avoid payment of the judgment, that he had a wife and four young children to support and that plaintiff could derive no benefit from his continued imprisonment, except the satisfaction of having him in prison. Rule for discharge from imprisonment under process issued on a judgment obtained in a civil action. C. P. Dauphin Co., Sept. T., 1923, No. 509. George Kunkel, for petition; Beidleman & Hull, contra.

Fox, J.-This matter comes before us upon a rule to show cause why the petitioner should not be discharged from arrest under civil process. The petition for the rule in substance avers that a writ of fieri facias with capias ad satisfaciendum attached had been issued in execution of a judgment recovered against the defendant in an action in trespass for the death of the plaintiff's minor child, occasioned by the defendant's negligent operation of an automobile on or about July 12, 1923. It also discloses all that is required in the 1st section of the Act of July 1, 1915, P. L. 704.

To this petition an answer was filed which in substance avers: That the defendant, when the sheriff was executing the writ of fieri facias with ca. sa. attached and requested information of the defendant as to his property, the latter answered that he had no property, which amounted to a secretion, and that, in connection with the defendant's other conduct, i. e., in the use of foul VOL. 7-48