239 Pa. 608 | Pa. | 1913
Opinion by
Three questions are raised by this appeal, or, more accurately speaking, two questions are raised by counsel for appellant, and one by counsel for appellee. We will discuss these questions in the following order.
It is contended that the provision of the Act of 1909 relating to the procedure for making the appraisement is simply in aid of distribution, and is without finality until there shall be a final distribution of the estate. In
The important question in the case is whether the husband elected to take under the will of his wife; if he did, he is bound by that election and cannot claim under the intestate laws. It is argued with much force that his acts were equivalent to an election in pais, and that by reason of what he did in the management and control of his wife’s estate after her death he is estopped from claiming otherwise than under her will. The answer to this position must of necessity depend upon the facts and they are to be determined by a proper tribunal. The learned Orphans’ Court, after an exhaustive examination of the evidence and a careful consideration of the law, reached the conclusion that what was done by the husband did not amount to an election in pais. He found the facts in favor of appellee, and while there may be room for difference of opinion as to the inferences to be. drawn from the facts, there
On the other hand we think the learned Orphans’ Court was clearly right in finding that the husband had elected to take against the will of his wife. The negotiations for a family settlement were based upon the known attitude of the husband that he would take against the will of his wife unless there was an amicable adjustment between the interested parties and himself satisfactory to him. He did make his election to take against the will of his wife in writing, duly acknowledged in his lifetime. Under the circumstances of the present case this was a valid exercise of his right of election and his estate is entitled to whatever benefit accrued to him by reason thereof. We fully agree with learned counsel for appellant that the election could not be made by the executor or administrator of the deceased husband. Our own cases so decide. But in the present case the election was not made by an executor or administrator; it w;as made by the husband in his lifetime.
One more question remains to be considered. The
Assignments of error overruled and decree affirmed at cost of appellant.