86 Pa. Super. 245 | Pa. Super. Ct. | 1925
Argued May 5, 1925. August Braum, aged seventy years, a widower with children and grandchildren, married Gertrude Rohrback January 9, 1922, she being then eighteen years of age. After the marriage they dwelt together as husband and wife, for a period of about three months, on the old Braum homestead in West Elizabeth, Allegheny County. At the end of that period the wife left her husband's home and returned to the home of her parents From that time until the death of her husband, January 23, 1924, she never cohabited with him nor had any relationship or communication with him. She *247 did not attend his funeral. By his will made shortly before his death he provided: "I give and bequeath to my wife, Gertrude Braum, who has left my bed and board of her own free will, just what she is entitled to under the law and no more." On March 10, 1924, the widow presented her petition to the court below, praying for the allowance to her of the widow's exemption of $500, in cash, out of the estate. Exceptions were filed by the executor, who was also a legatee under decedent's will, denying the right of the claimant to the widow's exemption for the reason, inter alia, that she, without reasonable cause, abandoned the bed and board and home of decedent and wilfully and maliciously deserted him more than one year previous to his death. The learned judge of the court below found, and the evidence fully warrants the finding, that neither of the parties could have maintained an action for divorce, but held that because the evidence does not justify a finding that the wife was guilty of wilful and malicious desertion contemplated by the Intestate Act of 1917, her right to her exemption is not barred. The exemption of $500 was awarded to her, and that action is the error assigned.
The sole question is: Has the widow the right to take the exemption? Judge PORTER, in speaking for this court in Crawford's Estate,
In the present case, as in Crawford's Est., supra, the claim was made under the 12th section of the Fiduciaries Act of 1917, P.L. 447. In that case we decided that there is nothing in the Fiduciaries Act of 1917 which would warrant our holding that it was the legislative intention to change the existing law on the subject; that under that act the grounds upon which a widow may "forfeit her rights" are the same as under the earlier legislation. The distinction between the right of the widow to take under the Intestate Act of 1917, P.L. 429, and her right to the widow's exemption under the Fiduciaries Act of 1917, P.L. 447, were pointed out. A wife may be entitled to participate in the distribution of her deceased husband's estate under the intestate law, although she has forfeited her right to the exemption. The different rights are based upon different statutes: Arnout's Est.,
The first assignment of error is sustained and the decree is reversed, costs to be paid by the estate.