Beck's Estate, Appeal, No. 125

Appeal, No. 125 | Pa. | May 12, 1919

Opinion by

Mr. Justice Walling,

This proceeding in the orphans’ court is to determine the right of a widow, under the facts found, to take against the will of her late husband. Robert A. Beck died May 17, 1915, testate, and by his last will all his estate, mostly personalty and amounting to over $20,000, is given to the Bellefonte Trust Company in trust, inter alia, to pay his widow, the appellant, $50 a month for the first five years and thereafter $60 a month for the support of herself and their two minor children; and stipulating that the widow’s interest in the estate shall cease and determine upon her death or remarriage. The trust company was also appointed and qualified as executor of the will. Four days after testator’s death the will was read to the widow, who expressed satisfaction therewith, and three days thereafter, in the presence of her attorney, signed an election to take under it. This was directed to the register of wills and filed in his office, but not acknowledged nor delivered to the executor. Mrs. Beck did not then know the amount of the estate; however, shortly thereafter an inventory was taken, but no account has been filed nor settlement made, although the $50 a month has been regularly paid; and in the fall of 1915 the orphans’ court, on her application, allowed $10 a month additional for the support of the children, to be paid from the income of their estate. In August, 1916, the widow executed and acknowledged an election to take against the will of her deceased husband, which was addressed to and given the executor, with a request that it be recorded in the office for the recording of deeds and the office of the register of wills of Centre County, as required by Act of April 21,1911, P. L. 79. This was declined by the executor and the paper returned to Mrs. Beck, whereupon she filed her petition in this case praying for an order requiring the executor to record her election last above stated and that the same be deemed and taken as her sole and only election, and that the one first above stated be decreed void and of no effect. To which the executor filed answer and testimony was taken and, upon due consideration, the court below held her election to take under the will valid and refused her petition; from which she brought this appeal.

The relief prayed for should have been granted, as the case is governed by the Act of 1911, supra, Purden’s Digest (13th ed.), vol. 7, p. 7766, which provides that, “1. Surviving husbands or wives electing to take under or against the wills of decedents shall, in all cases, manifest their election by a writing signed by them, duly acknowledged by them before an officer authorized by law to take the acknowledgment of deeds, and delivered to the executor or administrator of the estate of such decedent.

“2. No payment from the estate of such decedent shall be made to any husband or wife unless his or her election shall have been duly executed, acknowledged and delivered, as provided by the first section of this act.”

The act contains a further provision for the recording of such election in the office for the recording of deeds and thereafter in the office of the register of wills. The requirements as to execution, acknowledgment and delivery are mandatory, and, as appellant’s election to take under the will was neither acknowledged nor delivered to the executor, it was ineffective and did not preclude her from electing to take against it. The language of the statute is plain and its meaning emphasized by expressly excluding the delinquent party from all share in the estate until the election has been made as therein required. The manifest intent was to promote certainty in the settlement of estates. Those provisions of the Act of 1911 do not seem to have been heretofore construed by an appellate court, but so far as passed upon by the lower courts the conclusion appears to be in harmony with that above stated. In Johnson’s Est., 244 Pa. 600" court="Pa." date_filed="1914-03-30" href="https://app.midpage.ai/document/johnsons-estate-6252166?utm_source=webapp" opinion_id="6252166">244 Pa. 600, the statutory requirements were complied with. Under prior statutes, containing no such provisions, the rule was different, then an election, even in pais, if advisedly made and clearly proven was sufficient.

Mrs. Beck did not lose her right to take against the will by a delay of fifteen months in making her election. A much longer time has often been allowed; and, under the Act of March 29, 1832, sec. 35, P. L. 190, Purdon’s Digest (13th ed.), vol. 1, p. 1277, a widow cannot be called upon to make her election until after the expiration of a year. Nor is she estopped from electing to take against the will. The extra f 10 a month was outside of the will and for the support of the children, and whatever she received from the monthly payments can be accounted for on settlement of the estate. Such payments were for the mutual benefit of the widow and children. No rights of third parties have intervened and the estate is not yet settled. The executor (appellee) cannot claim an estoppel against the widow because of money it paid her in contravention of the statute. It is not deemed necessary to consider the other features of the case.

The decree is reversed and the prayer of the petitioner granted, costs to be paid by the estate.