Bower's Estate, 17 Pa. Super. 59

Bower's Estate

17 Pa. Super. 59 | Pa. Super. Ct. | 1901

Opinion by

Rice, P. J.,

In compliance with the rule of court the counsel for the appellants stated the question involved to be as follows : “ Is the right of the widow to claim her exemption of $300 out of the estate of her deceased husband barred (a) by laches in making the demand; (5) by estoppel.” The court below correctly decided both branches of this question in the negative. The clear and convincing opinion of the learned president judge of the 24th district specially presiding, fully covers the ground, and renders discussion of these points by us unnecessary. We also concur with him in his conclusion as to the jurisdiction of the court to enforce the widow’s claim. It seems to us that under the decisions of the Supreme Court in Thomas’s Estate, 152 Pa. 63, and Peebles’s Estate, 157 Pa. 605, this question is free from doubt, assuming, as the court has found upon ample *65evidence, that she was not chargeable with laches in making her claim, or with snpineness afterwards. But it has been repeatedly held that the right of the widow “ is a right sub modo, to be asserted in the manner pointed out by the act,” and that ordinarily there must be an appraisement. Hence, there is force in the suggestion, that, if she goes into the orphans’ court to enforce her right, she is not in precisely the same position as if she were suing in a court of law to recover damages for the injury sustained by reason of the executor’s refusal to comply with her demand. This proceeding, primarily, is for the purpose of compelling them to perform their statutory duty, which, in the language of the statute, is “to have the said property appraised in the same manner as is provided in the act passed the 9th day of April in the year 1849.” Whilst it is true that at the time the widow presented her petition to the orphans’ court there was no money or personal property which could have.been set apart to her, there is real estate out of which she can have her exemption, in the mode pointed out by the statute. But we are not convinced that under the law and the facts of this case she is entitled to a decree for the payment of her demand in money in the first instance, or that the promise of the executor’s attorney to pay it in money is enforceable in this form of proceeding. The case is not the same as if the land had been sold and the fund were in the hands of the executors for distribution. Therefore, whilst fully concurring with the learned judge below upon the main questions in the case, we are of opinion that the decree should be modified in accordance with the foregoing suggestions. And now, to wit: April, 1901, the decree of the court below is amended and modified by striking out the words, “ before the first Monday of September, 1900,” and substituting the words, “before the first Monday of June, 1901, unless the said executors shall in the mean time proceed to have an appraisement made in the mode provided by law,” and as thus amended and modified the decree is affirmed; .the costs of this appeal to be paid by the executors out of the funds of the estate.