Opinion,

This is an action brought by a husband to enforce his right of curtesy in the estate of his deceased wife. The defence was that he had forfeited this right in consequence pf a violation of the conditions of the act of May 5, 1855, by his wilful and malicious desertion of his wife for the period of one year or more previous to her death. That there was such a desertion seems, from the evidence, very clear. The court however ruled that proof of wilful desertion was not enough, but that on the defence lay the burden of establishing that it was also in fact malicious, and, conceiving that there was a failure in this part of the defendant’s case, directed a verdict for the plaintiff. That this was a mistake we have no doubt. If malice is not to be inferred from the commission of an unlawful act, its proof would often be difficult, and sometimes impossible. It would certainly be an astounding proposition that, where one man had unlawfully and deliberately killed another, malice was not to be presumed from the act itself.

But, as to the question in hand, we are not without authority in point. In Ingersoll v. Ingersoll, 49 Pa. 249, in defining wilful and malicious desertion in cases of divorce, we held that “ the guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other.” The same doctrine was also held in McGlurg’s App., 66 Pa. 366. It follows, that the case should have been given to the jury with instruction that if they found there was a wilful desertion by the plaintiff of his wife, Rebecca, for the period of one year or more immediately preceding her death, malice must be presumed; and that the burden of proof was thereby thrown on him to show that he had reasonable and lawful cause for such desertion.

*174So, it was also error not to admit the proceedings in the Quarter Sessions which resulted in an order on him for her maintenance. They were pertinent to show, not only the fact of desertion but that he had failed to voluntarily provide for her support. The order was the judgment of a court of competent jurisdiction, in a case between the same parties, and embracing the same subject of complaint; hence, was relevant to the controversy in hand. Nor can we see why the offer covered by the third assignment was not admissible. jGlearly, her declarations and manifestations of sorrow, immediately after his abandonment of her, were properly introduced as part of the res gestae; and if authority is wanting, on a point so obvious, it may be found in Cattison v. Cattison, 22 Pa. 275.

The judgment is reversed and a new venire ordered.