259 Pa. 72 | Pa. | 1917
Opinion by
Martin B. Hollinger, by a duly signed, acknowledged and recorded document, which was filed with the clerk of the court below and served upon the personal repre: sentative of his deceased wife, elected to take against the latter’s will. In this written election, Mr.. Hollinger recited that the estate in question consisted of personal property, and particularly declared his desire to have $5,000 allotted to him therefrom, as allowed by the Act of April 1,1909, P. L. 87. When the estate came before the Orphans’ Court for adjudication, the auditing judge took cognizance of this election and awarded decedent’s husband the requested allowance, in addition to one-half of the remaining portion of her estate. Exceptions were filed to the $5,000 award, “because there was no appraisement......, as provided by the Act of......1909 ......and its supplement”; and, upon their dismissal, this appeal was entered.
Appellants contend that a duly confirmed appraisement is essential to the validity of an allowance under the Act of 1909, supra; and that making such an award in the absence of this prerequisite constitutes reversible error.
The act- in controversy stipulates that “the procedure for appraising and setting apart the said $5,000 in value of property shall be the same as provided in Section 5 of the act of assembly approved April 14, one thousand eight hundred and fifty-one, relating to widows’ exemp
Under the Act of 1851, supra, it was early decided (Larrison’s App., 36 Pa. 130) that, when the election is to take the amount of the exemption in cash or its equivalent, an appraisement is not necessary, this ruling, which was followed by the court below, being founded upon the theory that “to appraise money is to count, and counting answers all the purposes of appraisement” (Peterman’s App., 76 Pa. 116, 120); this doctrine has been consistently adhered to ever since: see Seller’s Est., 82 Pa. 153,157; Finney’s App., 113 Pa. 11, 16; Towanda Bank’s App., 1 Mona. (Pa.) 463; Beetem v. Getz, 5 Pa. Superior Ct. 71, 76; Rigby’s Est., 8 Pa. Superior Ct. 108, 112; Sharp v. Woolslare, 25 Pa. Superior Ct. 251, 254.
We find no departure from the rule followed in the foregoing authorities; in fact, the rule in question is plainly recognized even in Buckland’s Est., 239 Pa. 608, 612, cited by appellants; we there said: “Oases may arise under the Act of 1909, as they have under the Act of 1851, in which the estate may be of such a character as to make an appraisement unnecessary.”
Of course, in cases where real estate is chosen as part of the $5,000 allowance, or in other instances where something more than mere counting is required to measure the property taken, an appraisement must be had; and, when necessary, it must be made as provided in the relevant acts of assembly. Under the facts at bar, however, where the entire property for distribution consists of cash or its equivalent (Finney’s App., supra), no error was committed in dispensing with the formality of an appraisement.