The opinion of the court was delivered, July 7th 1870, by

— It seems to us the auditor made a plain mistake in inferring a marriage between Silas Omohundro and Corinna his slave from the testimony of those who heard him declare her to be his wife while on their visits to Pennsylvania. The fact of marriage is contradicted by the will and by all the circumstances. Corinna and her children both claim under this will the property which is sought to be taxed as a collateral inheritance. Nowhere in the will is she denominated his wife, or is it intimated that she sustained such a relation to him, while he expressly calls her his “ woman,” and emancipates her and her children from all manner of servitude. At one place the will speaks of her as a “ kind and faithful woman to him,” and at the same as an “ affectionate mother to the children” whom he acknowledges as his, presenting her relations to himself and the children in strong contrast. He uses similar language in respect to another female slave whom he emancipates — “ his woman Agnes, and her two children, Virginia and Waverly.” He stamps upon his will still more clearly his meaning and intent in its final paragraph when he says, “In conclusion I declare my sole purpose in making this my last will is to give my whole estate of whatever it may consist (except Agnes and her children) to Corinna and her children in the manner specified in it.” It is evident that he knew that Corinna and her children sustained no legal relation to him, which could entitle them to his estate without a will; and the exception of Agnes and her children out of his property exhibits the relation of servitude she sustained to him, a relation existing and described in the same language on part of Corinna.

' Independently of the will the circumstances repel a presumption of marriage. Silas Omohundro lived in a slave state, Corinna was his slave, and three of his children were born as early as 1857. There is no probability, owing to this relation, of a prior emancipation and actual marriage, while not a word of proof has been given of their cohabitation as husband and wife in Virginia. The proof should come from Virginia, and not from Pennsylvania, where Corinna came merely on a visit twice in his company. That he should call her his wife in this state is not strange. He could not indulge in the practice of concubinage with her in this state, as he had done in Virginia, without subjecting himself to reproach, and perhaps to banishment. The evidence of marriage relied on by the auditor was very weak, and was overborne by the will and the nature of the circumstances.

The decree of the Orphans’ Court is therefore reversed, and it is decreed that the Commonwealth is entitled to the collateral *117inheritance tax, to be levied and collected of the estate of the testator, found within this state, according to law; and the record is ordered to be remitted to the Orphans’ Court of Lancaster county to carry this decree into effect, the costs to be paid out of the estate.