Dissenting Opinion
Lefever and Shoyer, JJ.,June 4, 1965. — It is firmly established that a spouse who voluntarily enters into a ceremonial marriage cannot challenge the validity thereof on the ground that his possibly subsisting prior marriage constituted an impediment to the challenged marriage: Commonwealth ex rel. Wenz v. Wenz, 195 Pa. Superior Ct. 593. In the instant case, decedent voluntarily and willingly contracted the challenged marriage with claimant; in fact, she urged claimant to marry her.
Decedent’s sisters, who claim her estate, are in no better position than decedent, since their rights derive from her: Thewlis’s Estate, 217 Pa. 307. Hence, in law, they are in no position to challenge the validity of decedent’s marriage to claimant. Moreover, in equity, the sisters should be precluded or estopped *243from contesting the validity of this marriage, since they themselves urged both parties to contract the marriage “because their sister wanted to live right and she couldn’t do it without being married”. During the almost 20 years of the subsistence of the challenged marriage the sisters knew of it, acquiesced in it and approved it. In fact, they treated decedent and claimant as validly married and acted toward claimant as their brother-in-law.
Objection is made that decedent’s conduct lacks the so-called presumption of innocence. It is true that decedent stated on their application for marriage license that she was single. However, it was testified that she believed a person was eligible to remarry after her husband had deserted for a period of seven years. Precedent in this and other Pennsylvania courts supports her, because, if a second marriage is contracted after seven years from the time the first spouse was last heard of, a presumption arises that the first spouse had died prior to the second marriage and the second marriage is, therefore, valid: Breiden v. Paff, 12 S. & R. 430 (“old transaction”, more than 30 years); Wilhelm’s Estate, 23 Dist. R. 757 (O. C. Phila., 13 years’ absence); Commonwealth v. McKenna, 17 Dist. R. 586 (Q. S. Phila., seven years’ absence); Commonwealth v. Clineff, 21 Del. Co. 462 (five years, two months’ absence before second marriage; over 12 years’ absence to date of contest).
In Breiden v. Paff, supra, our Supreme Court, through Mr. Justice Gibson, said (p. 431) :
“I am of opinion the court were right, in leaving the jury to presume, that the persons to whom she had been married, previously to her marriage with Paff, were dead. In an old transaction like this, the fact of a second marriage, is of itself some evidence of the death of the former husband. There are sometimes cases where it is unavoidably necessary to decide on *244the existence of facts, without a particle of evidence on either side, and if a decision in a particular way, would implicate a party to the transaction, in the commission of a crime, or any offence against good morals, it ought to be avoided; for the law will not gratuitously impute crime to any one, the presumption being in favour of innocence, till guilt appear. In a case like the present, this presumption will almost invariably, accord with the truth; for the circumstance of the husband being in full life at the second marriage of the wife, rarely occurs more than once in a thousand instances. Here there were no particular circumstances, inconsistent with the presumption, the evidence being nothing more than, that the wife had been previously married; and it would be attended with great danger of injustice, if a casual expression of a witness, should unexpectedly lay a party under the necessity of unravelling all the particulars of a transaction, of thirty years’ standing.”
In Madison v. Lewis, 151 Pa. Superior Ct. 138, 145-46, President Judge Keller adopted the language of the lower court, which our Supreme Court in Watt Estate, 409 Pa. 44, 52, characterized as the “clearest and most logical expression” on this subject:
“When a valid marriage is proven, the law presumes that it continues until the death of one of the parties (actual or presumptive after seven years), or a divorce is shown. Without either of these appearing if one of the parties marries again, while another presumption arises that it is innocent, that alone is not sufficient to overcome the .previously existing presumption of the continued validity of the first marriage. The second presumption does not of itself destroy the first but requires some proof of facts and circumstances to be given the effect of overcoming the first; as for instance, the long lapse of time during which the other party may be presumed to have died, *245the question of legitimacy of a child of the second marriage, the fact that the other spouse had likewise remarried, and proof that the decedent, whose heirs are attaching the second marriage, had himself recognized the validity of it” (Italics supplied.)
Decedent believed in her marriage, it gave her “a different status”, and her sisters, at her request, thereafter addressed her as Mrs. DTppolito. Search for the missing Frank and contemplation of a divorce were “not an admission on her part that [Frank] was then still living”: Schaefer v. Schaefer, 189 Pa. Superior Ct. 120, 123. Furthermore, since the passage of the Marriage Law of August 22, 1953, P. L. 1344, 48 PS §§1-1. — 1-25., “good faith” has been made the test for validity of a second marriage. Good faith as used in section 17 of this act, (which applies to residents of this Commonwealth regardless of where married,) means “a bona fide desire for marriage”: Commonwealth ex rel. Wenz v. Wenz, supra, p. 600; Freedman, Pa. Law of Marriage and Divorce, 2d ed., p. 145.
In our opinion, the learned auditing judge wrongfully placed upon the claimant the burden of proof of the death of the decedent’s first husband who had not been heard from by decedent or her sisters for some 40 years prior to her death. The burden of proof properly lay with decedent’s sisters who challenged the validity of claimant’s marriage to decedent: Watt Estate, supra, pp. 54-55; Thewlis’s Estate, supra; Fritsche v. O’Neill, 147 Pa. Superior Ct. 153, 162, 164; Holben’s Estate, 93 Pa. Superior Ct. 472; Wile’s Estate, 6 Pa. Superior Ct. 435. Failing to meet this burden, their claim should have been denied, and the estate should be awarded to Anthony as part of the spouse’s allowance.
Accordingly, we dissent.
Saylor, J., joins in this dissent.