95 Pa. 394 | Pa. | 1880
delivered the opinion of the court,
The learned master was clearly right in deciding that the will of Thomas Chadwick gave his widow, now Mrs. Stotler, one of the appellees, the same interest in the real estate of which he died seised, as she would have been entitled to under the intestate law. In the second paragraph of his will he directs that his widow shall receive one-third of the proceeds of his entire estate as long as she lives, and that the residue of his estate should be equally divided among his four children. If he had died intestate she would have taken, under the law, “ one-third part of the real estate for the term of her life.” The devise of “ one-third of the proceeds,” &c., gave her precisely the same interest in the land: Carlisle v. Cannon, 3 Rawle 488. Inasmuch then, as her interest in the real estate was the same, whether she took under the will or under the intestate law, it was wholly unnecessary for her to make any election in regard to it; and the principle applies that, where the interest under both is the same the devisee takes under the intestate law rather than under the will. Mrs. Stotler was, therefore, invested with that interest in the land which the law gives to the widow of an intestate who dies leaving issue. Was that interest divested? The master found that when the money was loaned by appellant to Mrs. Landwehr, and the mortgage taken to secure the same, Mrs. Stotler agreed verbally that she would not assert any claim prejudicial to the mortgagee. Based upon this fact, the contention of appellant was, that inasmuch. as he had purchased the land at sheriff’s sale under the mortgage, Mrs. Stotler was bound by her agreement, or at least was estopped thereby from setting up
From what has been said it follows that the amount due Mrs. Stotler at the time of the sheriff’s sale should not have been included in the decree. In other respects we discover no error.
Decree reversed, and it is now adjudged and decreed that Henry B. Landwehr, Jane E. Landwehr and John S. Davison, pay to Jane E. Stotler $>89.20, in full of her damages for detention of her dower, or interest in the*398 nature of dower to October 1st 1880, and that on October 1st 1881, and annually on the first day of October in each and every year thereafter, during the life of the said Jane E. Stotler, the said defendants pay to her the sum of $40; and that payment of the said several amounts be enforced by execution in the nature of a levari facias against the seventeen acres and one hundred and forty-one perches of land only, as described in the fourth section of the plaintiff’s bill; and that the said defendants pay the costs in the court below including the master’s fee fixed by the court; and that the appellees pay the costs of this appeal.