99 Pa. Super. 321 | Pa. Super. Ct. | 1930
Argued March 3, 1930. Christopher T. Boland died on the 18th day of February, 1928, leaving to survive him a widow, Bridget, and twelve children, two of whom are minors. On February 24, 1928, a paper purporting to be the last will of C.T. Boland was duly admitted to probate by the register of wills of Lackawanna County.
On the 11th of July, 1928, Bridget Boland in her proper person and also as guardian of the estates of the two minor children, appealed from the decision of the register of wills and presented her petition to the court asking that the first will be set aside and she be allowed to produce a later will, consisting of two separate writings, dated December 5, 1923 and July 9, 1927.
Patrick J. Boland, son and heir-at-law of the appellant, filed a demurrer which was sustained by the lower court for two reasons: (1) that the widow of the decedent, not being bound by her husband's will, is not entitled to contest it, but may elect to take her statutory share of the estate, citing McMasters v. Blair,
If the widow has standing to contest the will, she has taken the right method to do so. In Sebik's Estate,
The position taken by the lower court that she cannot contest the will because if she be dissatisfied with its provisions, she can take against it, would apply only if she were not benefited by setting aside the will. The rule which prevents the widow from contesting a will where she can get the same benefit by taking against it is merely an application of the general principle that in order to contest a will a person must be interested in the distribution of the estate of the decedent. "The right of appeal belongs to a person in a legal sense aggrieved": Wacker's License,
If she is bettered by setting aside the will and the substitution of a later, it appears she has the right to appeal, thus in Murphy v. Murphy, 23 Ky. L. Rep. 1460, 65 S.W. 165, where the contest was as to which was the real will of the decedent, it was held that she, being benefited by establishing such will, had the right to appeal from its probate. To the same effect are Moysen v. Neilson, 9 Ohio S. C.P., Dec. 623; Freeman v. Freeman, 61 W. Va. 682; 57 S.E. 292.
In the Freeman case, the case of McMasters v. Blair, supra, is distinguished on the ground that in that case so far as the widow was concerned, it was immaterial whether she renounced the provisions of the will or successfully contested it and that if the renunciation in the Blair case "did not give the widow the same interest that she would have acquired by a successful contest, it was clearly manifest that the court misapprehended the case and decided upon a wrong theory." Other cases to the same effect are Dexter v. Codman,
Where interest is established and benefit ensues by the setting aside of a will, anyone so interested may contest: Abrams v. Ross Est., (Tex.)
We all conclude that the widow in the case before us has the right to endeavor to have the later testamentary writing substituted for the will that has been probated. In the first will, she had but a life interest *326 in the real estate. In the last testamentary writing, the property which was formerly devised in trust is given to her absolutely. She is, therefore, interested in setting aside the first will. She gets more in the latter will than she would if she claimed her statutory share against the will.
As to her representing the minor children as guardian, we find nothing that gave her such authority and we think the court was right in holding that she had no standing in that respect. It would seem that the proper way to have had the children represented would have been to ask for the appointment of a guardian ad litem.
The order of the lower court, sustaining the appellant's demurrer insofar as it applies to Bridget Boland, the widow, is reversed and the costs of this appeal are to be paid by the estate.