5 Pa. Super. 57 | Pa. Super. Ct. | 1897
Opinion by
In Hufman’s Appeal, 81 Pa. 329, the widow, at the time of the appraisement of the personal property under her demand for the benefits of the exemption laws, orally claimed the balance out of the real estate, but neglected to have an appraisement thereof made, on the ground, as the auditor found, that the realty consisted of but one tract of land, which was incapable of division. Under these circumstances it was held that an appraisement of the realty was a sine qua non, and hence she was not entitled, as against creditors, to have the deficiency made up to her out of the proceeds of the sale of the land. It was perfectly proper in that case to say that she neglected to have an appraisement made because she was one of the administrators. The neglect was her own. In the present case the widow had no control of the matter. All that she could do was to claim the right to the balance of $300, for herself and family out of the real estate. This claim was in writing and was attached to and filed with the appraisement list long before the order of sale was applied for. It was the administrator’s duty to have had an appraisement made, but his neglect or refusal to perform his duty did not deprive her of the benefits of the law. Under the circumstances laches was not to be imputed to the widow: Williams’ Est., 141 Pa. 436. Good’s Appeal, 152 Pa. 63, rules the case. Upon the authority of that decision as well as for the reasons very fully and clearly set forth in the report of the auditor and the opinion of the presiding judge the court rightly held that if a widow who is neither executrix nor administratrix and has not been guilty of laches makes a demand for an appraisement of her deceased husband’s real estate before an order of sale for the payment of debts is asked for, she may claim her exemption out of the fund arising from the sale, although no appraisement has been actually made thereof.
The decree is affirmed and the appeal dismissed at the costs of the appellant.