166 A. 656 | Pa. | 1933
Argued March 21, 1933. This appeal is from a decree of the Orphans' Court of Allegheny County dismissing exceptions of the widow of J. Henry Erk to the schedule of distribution filed at the audit of her deceased husband's estate. Decedent died September 25, 1930, and by the second item of his will provided as follows: "I give and bequeath to my estranged wife (Christie B.) who has not always been loyal to me, such portion of estate which is required by Pennsylvania Law but not more." The only question presented for our determination is the amount of testator's estate passing to the widow by this language in his will.
Appellant contends that the share she takes is determined by section 2-A of the Intestate Act of 1917, i. e., the sum of five thousand dollars absolutely plus one-half of the remaining real and personal estate. In support of this view appellant cites two cases decided subsequent to the Act of 1917, supra. These are Morris's Est.,
The wording of the will makes it clear that testator desired to leave his widow the minimum required by law. He knew, or is presumed to have known, that any attempt on his part to deprive her of all interest in his estate could be defeated by her election to take against the will. He specified, accordingly, that she should take no more than the law awarded her as a minimum, — in other words, the amount she could obtain by electing to take against the will. The lower court properly limited the widow's interest to one-half the real and personal estate, this being the amount which she would receive by taking against his will.
The decree of the court below is affirmed at appellant's cost.