Browarsky's Estate.

ceedings in lunacy

* or any other proceeding, by which purchasers of real estate would be deemed to have constructive notice, shall be commenced in any of the Courts of this Commonwealth," and a final decree shall have been made, it shall be the duty of the proper officer of the Court, persons interested in the same, within six months after the same shall have been made, to procure a certified copy of said decree, under the full and clear caption of the case, and have the same recorded in the Recorder's office. There is just the same reason for saying that a feme sole trader proceeding is one "by which the purchasers of real estate would be deemed to have constructive notice," as there is for a lunacy or habitual drunkenness proceeding. The language of the Act enumerates several, and includes any other similar proceeding. The purpose is to protect purchasers from the claims of persons under legal disability, by giving them constructive notice of a proceeding prosecuted to final decree, of which they are bound to know, without notice. An attempt by Hyman Browarsky to part with his curtesy in his wife's lands would be frustrated by an examination of the recorded record, just as an attempted sale of land by a lunatic would be, if lunacy proceedings had been instituted in his case and a final decree had therein, and the proceedings recorded under the aforesaid Act. The records of Yetta Browarsky's femme sole trader proceedings in the Proticonotary's office having been lost, the copy thereof recorded in the Recorder's office became secondary evidence of the contents of the original.

In Harvey vs. Thomas, 10 Watts, 63, it appeared that all of the record of a proceeding was lost except the docket entries, and the defendant offered to prove by parol the contents of the lost papers, which was permitted. In upholding this as a correct view of the law Mr. Chief Justice Gibson said, at page 67, "The competency of the docket entry, the other part of the record being lost, is incontestable. A part of the record may always Ec introduced on proof that nothing which can be had remains behind; and the proof of contents to supply the place of the part lost, was as clearly competent."

There is no doubt of the authority of this Court to examine the record of the Court of Common Pleas, and to declare that it had no jurisdiction of a particular case, when such is the fact, for it was said in Torrance vs. Torrance, 53 Pa., 505, at page 510: "The proper question which the Court Eelow should have examined and decided is, whether the proceedings under which the sale to the defendant below took place, fell within the jurisdiction of the Orphans' Court:" see also Grier's Appeal, 101 Pa., 412. It would fellow from this that if the Common Pleas has jurisdiction to investigate a proceeding to determine whether the Orphans' Court has jurisdiction, that the Orphans' Court would have similar authority to examine the records of the Common Pleas But if the Court had jurisdiction, the decree cannot he attacked collaterally; Bennett vs. Hayden, 145 Pa., 586. Desertion by a husband from his wife, or neglect or refusal to provide for her, is an indispensable jurisdictional fact upon which a femme sole trader decree can be founded; without this allegation the Court which enters the decree has proceeded without jurisdiction, and its decree is useless and void: Bennett vs. Hayden, supra. It is suggested that the absence of this jurisdictional fact is an irregularity only, and one which must be corrected in the Court in which the decree was made, or by appeal from the decree to the proper Appellate Court. The two last cases herein cited do not so hold, and a late Supreme Court case is Cierlinski vs. Rys., 225 Pa.. 312, from which we quote the following: "Judgment was afterwards entered for the defendants non obstante veredicto, on the ground that the Orphans' Court had exclusive jurisdiction to decide in the first instance whether the petitioner's claim to the land should be allowed, notwithstanding her remarriage, and

Browarsky's Estate.

its decision could be reviewed only by an Appellate Court, and even if erroneous, could not be attacked in a collateral proceeding, and was binding on the Common Pleas. This conclusion was clearly right. The Orphans' Court is a Court of record and its decrees within its jurisdiction stand on the same footing as those of any Court of record, and cannot be examined collaterally, nor set aside except in due course of law by appeal; Torrance vs. Torrance, 53 Pa., 505. No want of jurisdiction appeared on the face of the record. The petitioner averred that she was the widow of the decedent, and as such was entitled to the property claimed. This averment made it the duty of the Orphans' Court to take cognizance of and to decide her cause, and it was the only Court that could hear and determine it. Although she set out a fact that raised a doubt as to the validity of her claim, she was nevertheless entitled to be heard. A finding as to that fact by a Court having jurisdiction of the subject matter, however erroneous, was conclusive in a collateral proceeding."

It follows that the absence of a jurisdictional fact from a petition, necessary to the entry of a decree, is not an irregularity which takes away from another Court of record the right to examine that decree collaterally and set it aside, but the presence of that fact in the petition is essential for the Court's jurisdiction to hear the cause. There is no allegation of desertion, or neglect or refusal to support, by Yetta Browarsky in her petition for a certificate; other matters are alleged which are admissions that she had no right whatever to a certificate to act as a femme sole trader; she alleged that she had her husband's estate in her charge; he was indulging to excess in the use of intoxicating liquors; she was unfit to conduct his business, and she was conducting it for him; he was suffering with softening of the brain, and was mentally unfit for the transaction of his business, or to conduct it for the support of his wife; he became involved in trouble and was sentenced one year and six months to the county jail, which prevented him from carrying on his business, and she had no means of earning a livelihood for herself and family, save from the liquors belonging to him on hand. These facts warranted a committee in lunacy, or a trustee, but not a certificate to his wife to act as a feme sole trader.

The production of the copy of the certificate which was offered in evidence in the hearing before the Auditing Judge raised a rebuttable presumption of regularity. It is true that Moniger vs. Rittner, 104 Pa., 301, sustains the provisions of the Act of 1855, which declares that the certificate issued is conclusive evidence of the rights of a femme sole trader until revoked by the authority from which it emanates; but it is observed that the petitioner in that case alleged that her husband had "without cause wilfully abandoned her." and the Supreme Court said "the very premise on which the Act is founded, is that the marriage contract has been violated; that the husband has deserted his wife and refuses to support and maintain her:" and in Cole's Case. 230 Pa., 162, it was ruled that where the jurisdictional averments, desertion being one, were in the petition, the certificate was valid. It would follow that in the absence of these jurisdictional averments, no right to the certificate accrues, and its issuance is void: It was not intended to hold in Moniger vs. Rittner, supra, that the production of an invalid certificate would establish any rights in its holder until it was revoked; but the common sense view of this case is that a valid certificate confers the benefits of the Act until it is revoked. An abandonment of the rights conferred without judicial revocation results by showing that the reason for granting the certificate has been removed, for. when the deserted or neglected wife has condoned this offense of her husband, and they have again resumed the normal marriage relationship, the renalty of disinheritance by the Act authorizing the issuance of the cer

Browarsky's Estate.

tificate, could not be visited upon him. Estate of Bridget Flanagan, 59 Sup. Ct., 61.

It is also urged, that the regularity of the proceeding in the Common Pleas is presumed, and that this Court is bound by that presumption, and cannot inspect the record for the purpose of determining whether the Court of Common Pleas had jurisdiction. The rule embodied in the maxim praesumuntur legitime facta, is to be invoked in femme sole trader cases; Wheelock's Appeal, 2 W. N. C., 503. In Grier's Appeal, supra, it is said "The prima facie presumption is in favor of that decree, but the presumption is not one juris et de jure. It may be rebutted, and if it turns out that the Court had no jurisdiction, its order was void; Torrance vs. Torrance, supra. The maxim, omnia praesumuntur, when applied to judicial proceedings, is a valuable one, but it cannot clothe a Court with a jurisdiction that the Constitution and laws have put beyond its reach. It cannot validate a decree authorizing A to sell B's land, unless there is some precedent legal relation warranting it." To the same effect is Smith vs. Wildman, 178 Pa., 245.

* * *

The Court of Common Pleas had no jurisdiction of the petition of Yetta Browarsky, because it did not allege that she had been deserted by her husband, or that he had neglected and refused to provide for her, and if any certifiacte was ordered to be issued by the Court, it was absolutely void.

At one of the hearings in this case, counsel for the claimants made three offers of evidence in rebuttal, first, the Prothonotary's record of the feme sole trader proceedings; second, parts of the pleadings of another case, in which the executrices of Yetta Browarsky alleged that she was a feme sole trader, and set up the recorded copy of the proceedings as evidence thereof; and third, the recorded copy of the femme sole trader proceedings, for the purpose of showing that if a certificate was issued by the Court of Common Pleas declaring Yetta Browarsky to be a feme sole trader, that Court was without jurisdiction to enter the decree.

Objections were entered by counsel for the accountant to all the evidence thus offered. The first objection goes to the admissibility of the Prothonotary's docket entries. This was clearly decided to be evidence when the original papers were lost, by the Supreme Court in Harvey vs. Thomas, supra, and was followed by Wood vs. Halsey, 9 Pa., 144, and Richard's Appeal, 122 Pa., 547. Vincent vs. Huff, 4 S. & R., 298, relied upon by counsel for the accountant does not contradict the principle laid down in the other cases cited, for in that case the original writ was on file, and the Court in ruling out the docket entries said, "they were inferior to the writ."

The objection to the second offer by counsel for the claimant is sustained. These are the allegations of the executrices of Yetta Browarsky, that she had been declared a feme sole trader, and that the evidence thereof was the recorded copy of the proceedings, relied upon now as secondary evidence, in the absence of the lost original. The reason for sustaining this objection is that the executrices alone were in Court in that proceeding, and here all of the heirs of Yetta Browarsky object to the admission which was then made, and because some of them were not parties to that proceeding, the declaration of the executrices would not bind them.

The objection to the third offer is overruled. Our reasons for considering the recorded copy of the proceedings to declare Yetta Browarsky a feme sole trader have been hereinbefore set forth fully.

The conclusion is, that the administrator of Hyman Browarsky's estate must be surcharged with the net rents, issues and profits of the estate of Yetta Browarsky, from the date of her death November 19th, 1911, until

Browarsky's Estate.

the death of Hyman Browarsky, February 21st, 1913, in the sum of $5,448.26, and distribution of the balance in said estate will be made to the claimants who have proven their claims at this audit, and the remainder to the next of kin of Hyman Browarsky, deceased.

TRIMBLE, J., for the Court in Banc, July 12, 1915.-It appears from the records offered in evidence that Yetta Browarsky had her husband's estate in her charge and had no means of her own for earning a livelihood save from the liquors belonging to him and that she was obliged to earn her own living from his property which he was unable to care for when she was decreed to be a femme sole trader. She died on the 19th of March, 1911, and at that time left to survive her several adult children and two minors, one of whom was a son and the other a daughter. It also appears that neither of these two minors had reached the age of majority prior to January 23, 1913 (see answer filed to bill in equity in the Common Pleas at No. 2788 January Term, 1913), but it does not appear any place in the record what their exact ages are. It is claimed that a certificate purporting to have been issued to the decedent constituting her a femme sole on the 7th day of February, 1891, bars recovery of the husband's curtesy. From the two dates above set forth it appears that Hyman Browarsky and Yetta Browarsky cohabited and lived together as man and wife after the date of the alleged decree, and that the older of said minors was born to them at least eleven months and fifteen days after the date on which it is alleged the said decree was entered. It also appears that on the 9th day of March, 1911, Yetta Browarsky executed her last will and testament, in the tenth paragraph of which she creates a trust for the keeping and care of her husband during the term of his natural life, and at least three times she recognizes him in her will as her husband.

These facts prove conclusively that there was neither desertion nor neglect and refusal to support. There could be no desertion alleged as a bar to recover a curtesy interest followed by cohabitation and the birth of issue. Nor can there be neglect and refusal to support after confiscation of the husband's means of support. Without the petition for the decree of femme sole and the certificate there would be no evidence. With them the objection to the accounting for the husband's curtesy is swept away. Even if the regularity of the proceedings in the Common Pleas is assumed or cannot be collaterally attacked, the maintenance of the family relationship between the husband and wife after the date of the alleged decree shows that there was a reconciliation between them, which is sufficient to overcome the bar of a femme sole certificate when regularly issued: Estate of Bridget Flanagan, 59 Superior Ct., 61; and Hellwig's Estate, 59 Superior Ct., 233.

Exceptions 3, 4, 5, 6, 10, 23 and 25 have been withdrawn, and all other exceptions will be dismissed for the reasons given by the auditing judge in his opinion heretofore filed and in this opinion for the court in banc.

Jaskalski vs. Pennsylvania Slovak Roman and Greek Catholic Union.

Death

-Presumption of--Mother- -Children-Beneficial Union

-Benefits.

A was married and had four children. In 1892 his wife left his home, taking with her two of the children-Mary, aged 4 years, and Ella, aged 6 years. The two remaining children-Anna and Zuzanna-remained with A. In 1899 A took out a policy or death benefit for $1,000 in a Beneficial Union, payable to his "children" as the beneficiaries. During this period nothing was ever heard of the wife, or the daughters Mary and Ella. Anna, one of the daughters, had married and died in the lifetime of A, leaving issue-a minor child. Her husband, on behalf of the minor child, claimed the share of his deceased wife as one of the "children" under the policy. In a suit with Zuzanna as plaintiff defense was made that when the policy issued, A had four "children" and one of them was now dead, so that distribution should be made to three survivors, and not to the "heirs" or estate. Plaintiff claimed the whole fund on the ground that the two daughters, Mary and Ella, not having been heard from for more than 21 years, were presumed to be dead.

Held, That there were three of A's children living at his death, as the two, Mary and Ella, having left in the custody of their mother, in the ordinary course of nature, would now have reached young womanhood, and would not be presumed to be dead. The presumption of death, as against the mother, would rot apply to them. Held, That the minor child was entitled to the share of its deceased mother and that decedent having four children, one of whom died leaving a child, plaintiff has no standing to maintain an action in her own name and for her sole benefit, and in any event is not entitled to more than her share based or the number of children living and the child of the deceased daughter.

Assumpsit on appeal. No. 1335 January Term, 1914. C. P. Allegheny County. Alfred S. Miller, for plaintiff.

John Kulamer, for defendant.

CARPENTER, J., May 26, 1915. This cause comes into the Common Pleas on appeal from the judgment of the County Court. Suit was brought to recover $1,000.00 with interest. We affirmed defendant's point for binding instructions and plaintiff has filed a motion for new trial. From the pleadings and evidence it appears that Felix Kuvicks was at the time of his death, October 23rd, 1912, a member of the Pennsylvania Slovak Roman and Greek Catholic Union, a beneficial organization under whose laws he was entitled to a death benefit of $1,000.00.

Defense was made upon the ground that decedent designated his "children" as his beneficiaries; that he had four children when he became a member January 22nd. 1899; that one child, Anna, had intermarried with Stanley Kolinski and died in the lifetime of her fathar leaving issue and that he left surviving him three children, viz: Ella Kuvicks, Mary Kuvicks and Zuzanna Kuvicks. Defendant averred that Stanley Kolinski, husband of Anna, had, on behalf of his minor child, issue of said Anna, made demand for the share of said child in the sum of $1,000.00. The County Court, after hearing, entered judgment in favor of plaintiff for $483.33. This judgment was based on the finding that there were three children living at the time of the father's death and that plaintiff was entitled to $150.00 expended for funeral expenses. It appears that prior to his becoming a member of the defendant association, Mr. Kuvicks' wife had left her home, taking with her two of her children, Mary and Ella, and that they never returned. This fact is not disputed.

Judge Drew, in his opinion, says:

"The plaintiff's mother and sisters left their home about the year 1892, twenty-one years ago. The children, Mary and Ella, were then aged about four and six years, respectively, and if alive to-day are about twenty-five and twenty-seven years of age. They were infants of tender years when they were taken from home by their mother and probably with the consent of the father.

It would seem certain, although the testimony is not very definite, that the mother went away not expecting to return. She may have deserted