92 Pa. 95 | Pa. | 1879
delivered the opinion of the court, November 17th, 1879.
By the eleventh section of the Act of April 11th 1848, Pamph. L. 537, it is in like manner provided that, in case that the widow elects not to take under the last will and testament of her husband, she shall be entitled to her share of his personal estate under the intestate laws, that is, to one-third thereof absolutely. Of this it is not in the power of the husband to deprive her. But evidently he can dispose of the remaining two-thirds. If, therefore, after paying the widow one-third of the residue of his estate after debts, funeral expenses and the costs of administration, sufficient remains to satisfy his legacies, they are to be paid as provided by him, and the balance goes to his residuary legatees, if there is a residuary bequest, if not, then to the next of kin. If there is not enough to pay all the legacies they must abate according to the principles upon which, in other cases of a deficiency of assets, such abatement takes place. In Gallagher’s Estate, 26 P. F. Smith 296, we were called upon to consider the effect of an election by the widow to take against the will of her husband. It was there said: “The election of the widow does not destroy the right of the decedent to make a will and appoint an executor. The entire personal estate, bequeathed or not. vests in the executor in trust for administration and distribution: First. To pay debts and other legal claims. The widow electing to take under the will, has such a claim of which the decedent could not deprive her as he might deprive his next of kin of all claim, and give the entire residue to strangers. Over that residue he has entire power; he can carve it out and distribute it as he pleases, and in what order he pleases. His general and specific legacies must first be paid, and then if there is any-
Decree affirmed, and appeal dismissed at the costs of the appellant.