
    Tighe’s Estate.
    
      Gerald A. Gleeson, for exceptant; Ashton Locke Worrall, contra.
    May 1, 1931.
   Van Dusen, J.,

Hugh Hardisty and Mary were man and wife. Hugh abandoned his wife in 1892, and she has not heard of or seen him since that time. In 1911, she married James Tighe, the testator, and lived with him until his death. Now she claims the widow’s exemption. There was evidence that Hugh had been seen in 1915 and 1917. There is no allegation of a divorce or of a remarriage to the testator.

The Auditing Judge found that Mary was not the wife of testator, evidently crediting the testimony that Hugh was living at a time after the marriage to testator, though he does not specifically so find. If the former husband was actually living, presumptions must fall, the marriage was invalid and continued so, even if Hugh had afterward died. The case turns on the credibility of witnesses, which is a matter for the Auditing Judge. There was no request for an issue to be tried by a jury, and the grant of an issue is a matter of discretion.

However, with the concurrence of the Auditing Judge, the ease is referred back to him with leave to introduce further testimony with regard to the claim for widow’s exemption when the account comes up for final audit after readvertising has been made as directed.  