| Pa. | Feb 5, 1866
The opinion of the court was delivered, by
The 11th section of the Act of 10th April 1849, Purd. 1861, p. 149, exempts from the operation of the collateral inheritance tax laws, property “ passing by will to, or in trust for, the wife or widow of a son of any person dying seised or possessed thereof.” When the property of Eliza L. Jordan passed by her will to Elizabeth P. Powell, the defendant, she was not the wife of the testator’s son, for he was dead, nor his widow, for she was again married. Is she within the exemption ? We think not. In common parlance, we know the term “ widow” means an unmarried woman, and unless it be shown, which has not been attempted, that there is a technical sense to which it is to be referred for exposition, this is the sense in which we must regard it as used by the legislature. Our law dictionaries agree in their definitions of the usual acceptation of the meaning of the word “ widow:” a woman whose husband is dead: Whart. “ Widow,” an unmarried woman whose husband is dead: Bouvier. Worcester defines the word thus, “ a woman whose husband is dead and who remains unmarried ;” and Webster, in the unabridged edition of 1844, “ a woman who has lost her husband by death and has not taken another — one long bereaved of a husband.” The word is so entirely and exclusively descriptive of an unmarried condition, having once been married, that any other sense would be figurative.
By the intestate laws of the state, the interest of a widow is fixed the moment she becomes a widow, and is not divested by a subsequent marriage. So also is her right of election to take under the will of her husband or the intestate laws, although she may not elect until after the expiration of a year and until after marriage. And for the same reason too, I presume, it is that the right to retain $300 out of the estate of her husband exists, although before doing so a second marriagé may have taken place. Whenever a right by law has attached by reason of widowhood, there must be some law by which it is divested or it will remain; and this is á sufficient answer to the argument that by the laws referred to, a woman, though a second time married, has her rights awarded to her as widow still. In the case before us, if the property out of which the collateral inheritance tax is claimed, had passed' to the defendant by the will of her mother-in-law while widow of her son, and she had married before the settlement of the estate, it could not be pretended that this would divest her of her right of exemption under the act. But it did not so pass. The testator did not die until after the second marriage of the devisee, and the property does not vest in and pass to her until the testator’s death. At that time she was not within the class of exempts, and not entitled to take the property clear of the tax. To assert successfully a privilege or exemption against a general law, the party must bring him or herself clearly within the class exempted; that has not been done in this case, and we must reverse this judgment and enter judgment for the Commonwealth for the amount of the collateral inheritance tax as found in the case stated.
And now, to wit, February 5th 1866, the judgment entered in this case in the Court of Common Pleas of Delaware county in favour of defendant, with costs, is reversed, and judgment is now entered in favour of the Commonwealth against Elizabeth P. Powell on the case stated, for the sum of $706.69, with costs.