In re Osteopathic Examination. able to read and understand the rules and regulations promulgated by the Department of Health, or the proper municipal authorities. Very truly yours, WM. H. KELLER, First Deputy Attorney General. Judgment Groves Piano Company vs. Lucas et al. Assignment of Lease-Piano-Consideration-Pleading. On a petition to open a judgment confessed on a lease for a piano, where it was contended that lessor agreed to release the original lessee from further payments, provided payments then in default were made up to the time the lease was assigned, the evidence was not clear or explicit enough to relieve the original lessees of liability, the rule will be discharged. Payment of back rent without more is no consideration for a new agreement whereby assignees become liable for rent, thereby relieving the original lessees of further liability. A petition to open a confessed judgment on a lease that the lessors agreed to accept, and did accept, the assignees in place of the original lessees, or that the assignees agreed to pay the rent, is defective. Rule to Open Judgment. D. S. B. No. 580 April Term, 1915. C. P. Allegheny County. William A. Jordan, for plaintiff. Robert L. Vann, for defendants. FORD, J., November 6, 1915.-This is a rule to open a judgment confessed by virtue of a warrant of attorney contained in a lease. By their bond or judgment lease dated July 18, 1912, defendants then associated and doing business as the Peerless Amusement Company hired a piano from the plaintiff company for a term of twenty-eight months, and agreed to pay ten dollars as security for the faithful performance of the contract, and to pay for the use of the piano a monthly rental of five dollars. On or about August 19, 1914, the petitioners, Oliver H. Lucas and George T. Bullitt, sold their interests to R. A. Duiguid. Subsequently, Duiguid associated with other persons continued the business. At the petitioners withdrawal from the co-partnership the monthly rental was in default. In their petition, Oliver H. Lucas and George T. Bullitt allege-inter alia-that they notified the plaintiff of their withdrawal from the co-partnership and "that the plaintiff company at that time agreed to release these petitioners upon the condition that all arrearages be paid to the date of the notice, to wit, August 19, 1914,” and that they paid all said arrearages. It is further alleged that R. A. Duiguid took his new partners to the plaintiff company and introduced them as the successors of the petitioners, but it is not averred that the new partners agreed to pay the rent reserved in the lease nor that plaintiffs accepted them in lieu of the liability resting upon the petitioners by reason of their being parties to the bond. The contention here is that plaintiffs agreed to release the petitioners from further liability provided they paid the rent in arrears. The petitioners were liable for the rent, in making payment they but discharged a debt for which they were legally liable. The promise or agreement to release, if made, rested upon no new consideration and the payment of the rent then due was not, under the circumstances, such a consideration as would support the agreement. Groves Piano Company vs. Lucas ét al. About August 19, 1914, the parties met in the office of the place of business of the plaintiff company and conferred with Mr. F. H. Groves, president. Testimony on behalf of the plaintiffs as to what was then said is vague and indefinite. Mr. Lucas testified as follows: "Q. What did Mr. Groves say? A. At the present time I do not remember exactly what was said about our selling out. Q. Well, what did he say about requiring further payments? A. He gave no further understanding that we were to pay for the piano." George T. Bullitt testified: "Q. Out of all the talk you had with Mr. Groves did you arrive at any agreement as to future payments by you and Mr. Lucas? A. No, sir, we did not arrive at any agreement as to future payments. Q. Did Mr. Groves tell you and Mr. Lucas that he would make no further demands for payment? A. No, sir." Both of the witnesses testified they understood that they were to be released, but it is manifest they were under the impression that notice of their withdrawal from the firm and payment of the rent then in arrears would relieve them from further liability on the lease. Their position, as expressed by Mr. Bullitt was that "we had no more payments to make and would make none." Neither of the witnesses testified that Mr. Groves agreed to release them. Mr. Groves denies that he consented to release the petitioners and says that he informed them that they "were the responsible parties and that they, the plaintiffs, "would look to them for our money." The testimony as to plaintiffs agreeing that the defendant was to be released from further payments is not sufficient to justify the submission of the question to a jury, and we are therefore of the opinion that the rule should be discharged. Distribution and Descent Kvist's Estate. -Wife's Estate His Right to Share in Distribution. -Living Apart From Husband A husband will not be permitted to participate in the estate of his deceased wife where he did not live with her for a number of years prior to her death, and during that time failed to contribute anything to her support. A witness is competent to testify on behalf of the estate as to statements made by decedent that she did not want her husband to be notified of her sickness or death, and that no part of her estate was to go to him. Sur Claim of Alfred E. Randall. No. 88 January Term, 1916. O. C. Allegheny County. Harry F. Stambaugh, for accountant and Sweden heirs. 'Dalzell, Fisher & Hawkins, and Joseph H. Bialas, for A. E. Randall. Lazear & Blaxter, for Ellen Lundskog. MILLER, J., February 23, 1916.—The question is, the right of a husband to distribution, it appearing that he lived apart from his wife and did not support her for a number of years. The decedent, a domestic employed in this city since 1905 or 1906, under her maiden name, died July 4, 1914, leaving a personal estate of about $5,500 for distribution. It was not known to her employer or to the public, except possibly to one special friend here, that she had been married. In her trunks and among her effects were found, among other things, a marriage certificate under date of October 21, 1900, certified to by Reverend Benjamin C. Warren, pastor of the Union Methodist Church, New York City, who performed the ceremony, showing marriage to Alfred E. Randall; also a plain gold ring with the initials "A. K. from A. E. R. 1900;" also other rings; also letters and postal cards addressed to her in care of her employer, signed or proven to have been from Alfred E. Randall; also letters addressed to her from her kinsfolk in Sweden, forwarded by her husband to her and addressed as Anna Randall. In addition to the husband, she left surviving as next of kin a number of brothers and sisters and some children of a deceased sister, the major portion living in Sweden, the rest in various parts of this country. She came to America in 1891 or 1892, and located in the City of New York as a domestic servant. The rest of her history is in the testimony of the husband, who offered a certified copy of the marriage records of the City of New York, in which it appears that at the time of the application for marriage license he was thirty and a native of England, and she was thirtysix and a native of Sweden, with a return of their marriage by the minister named, and the marriage witnessed by Thomas Spafford and Alma Spafford. Randall says: That he first met the decedent in 1897 in Schenectady, N. Y., where she was employed as a cook, he as a butler; that in 1899 she went to New York and was employed there, and that later they were married, as already stated, the marriage certificate at that time being given to her; that the rings found in her trunk were given by him to her, one a diamond and opal ring, prior to their engagement: another a solitaire diamond as an engagement ring, and upon their marriage the wedding ring with the initials thereon already noted; in this connection a photograph of himself with her was offered in evidence, the identity of both being unquestioned. That after the marriage they conducted a boarding house at Schenectady, N. Y., for one year, and then went into the joint service of a Mr. Williamson as cook and butler, respectively, until 1902, when, finding they could not obtain suitable places together, they decided to take separate places. Kvist's Estate. From that time on he was butler or valet for two years at one place in New York, maintaining rooms in which his wife lived for a time, where he visited her; that she worked then at odd jobs is probable; then he found employment in Morristown, N. Y., and she in Albany; after that she came to New York, where her health becoming impaired, she returned to Pittsfield, Mass., where he now secured a position and where for some months he paid for her boarding and expenses; after this she returned to Pellam, N. Y., where their mutual friends, the Spaffords, lived, with whom she remained for a while doing jobs of cooking, until, apparently in 1907, she came to Pittsburgh and remained in the one employment until her death. During this period he was in various other places of employment as butler and valet, until 1911, when he became butler and attendant to his present employer, residing at Ridgefield, Conn. He last saw his wife five or six years before she died, when she passed through New York with her then employer, and he was notified by their mutual friends of her presence there. During the period of her employment in Pittsburgh he forwarded her some letters addressed to her coming from her family in Sweden. He also sent her letters and postal cards written by himself, found in her trunk, as noted before. He says he received letters from her, but is not able to produce them. He gives as a reason for their infrequent correspondence that he could not read her letters in the Swedish language, and that it was difficult for her to write. In all the letters written by him to her, as found among her effects, he addressed her as "Dear Anna," is solicitous about her health, speaks of their mutual friends, is very full of sympathy toward her in forwarding one letter from her relatives, which he is fearful contains the news of the death of her father, speaks of the tenants in what he calls "our house" at Schenectady, N. Y., and of the expenses paid by him in painting and repairing that property. Some of these letters have cross marks on them, interpreted by him as kisses. These letters, some six or seven, begin in 1910 and continue down to December, 1913. In December, 1914, he wrote to her again and then learned that she had died some six months before. He sent her no money for maintenance or support, after the payment of her expenses at Pittsfield, Mass., in 1905; she kept her wages, and he kept his. She never requested any money, he states; he offered her none. He further says that he has always been absolutely sober and could not hold the positions he described unless he were sober. He says it was easier for them to secure positions if they did not disclose the fact of marriage. He admits that he got from her in 1897, before they were married, $314, which he invested in a property at Schenectady, N. Y., the title to which is in his name. He is collecting the rent. He does not say whether this was a gift or a loan; at all events, he has not repaid it. No witness or other corroborative circumstance is offered by him in support of his claim to this estate. Whether if she had died without leaving an estate he would be here affirming this marital relationship, is left to conjecture. The only witness called by the estate is Miss Olsen, who knew Anna Kvist before she came to America and saw her a great deal in Pittsburgh up to the time of her death, stated, under objection, that the decedent told her that she gave Randall $1,500; that he took or got all her wages while they were together; that he did not support her, and that was the reason she started out to work for herself. It was further proven by her, under objection, that shortly before the decedent's death, when Miss Olsen spoke to her about her husband, that she said she did not Kvist's Estate. desire word to be sent to him of her illness and that he was not to have any of her money. Assuming that the husband was a competent witness, and of this there seems little doubt under Greenawalt vs. McAnelley, 85 Pa., 452; Conley's Estate, 185 Pa. 20; Munson vs. Crookston, 219 Pa. 419; has he by his testimony met the burden which the law casts upon him of showing that he did not desert his wife or that he did not neglect or refuse to support her during the period covered by the statute. It is urged that the evidence in this case does not show such desertion as would have entitled either the husband or the wife to a divorce, citing Hahn vs. Bealor, 132 Pa. 242; this may be so, but the statute provides that either neglect or refusal to support, or desertion, bars the husband's right if the period is within the prohibition of the statute: White's Estate, 188 Pa. 633; so that, irrespective of the question of desertion, he can not claim if he either neglected or refused to support. Accepting his testimony at its full value, and it is not to be presumed that he omitted to state any material fact which would have supported his claim, it is entirely clear that he did not offer or contribute one dollar toward her suppport for at least a half score of years; and nowhere in his testimony can there be found any basis for a fact that she voluntarily released him from his duty of support. At most, his testimony amounts to a decision, as he says, to take separate places; this implies that she was to continue to work for her living. As the result of this decision, announced by himself, she as his wife had to make her way alone among strangers far distant from him. In his few letters there is not a word indicating a husband's interest, devotion, protection, or support. Any acquaintance or friend could have written such letters. The law does not confer the right of inheritance upon a surviving husband in the absence of that family relationship which implies support; the law does not lend its aid in maintaining the semblance of such a relationship in the face either of notorious separation or admitted non-support: Weikert's Estate, 63 P. L. J. 265. Very like are the facts in this case to those in Kuffner's Estate, 58 P. L. J. 81. Granted that the separation was voluntary, unless non-support was a part of the voluntary act, that is, that she relinquished all claim or waived the performance of his marital duty as to support, the law bars him from recovery. The whole history of this claim is one of getting from his wife; very little of giving. He got $314 of her money before they were married, purchased property, taking the title in his own name, and is collecting the rents. He seemed solicitous that she should get a place to work after they were married, preferably where he was, but, if not together, that she should get some other place to work; he was zealous that she should be so employed that her employment support her and that he did not. If it be said that her retention of her own earnings implies that she waived the performance of his legal duty, the answer is that he fails to show any affirmative offer to perform that which the law imposes; retention of her own earnings under such circumstances seemed not only her right, but a necessity. The duty of support by a husband is imposed by law; the presumption is he performs his duty; when he admits that he did not, and seeks to exonerate himself therefrom, he must show by more than a self-serving declaration and decision to each take their own earnings, and in the absence of anything more, that she agreed thereby clearly and explicitly to relieve him of his duty. This duty of support, irrespective of desertion, is the law as held in Shaw's Estate, 54 Superior Ct. 446, where, as here, the wife had by her thrift amassed an estate, and although it appeared that her husband visited her daily, yet as he tendered neither services nor money for her main |