250 Pa. 9 | Pa. | 1915
Opinion by
The guardian of Mary C. Bringhurst, a person weak in mind, filed a petition in the court below praying for leave to take against the will of its ward’s deceased husband; permission so to do was refused, and the guardian has appealed.
The petition averred the appointment of the guardian;
The petition was sent to a referee, who made an elaborate report, in the course of which he found that the widow was 58 years old; that she had been confined in the Friends’ Asylum for the Insane at Frankford, Philadelphia, since 1888, “her mania being incurable and of a recurrent chronic type, such as to subject her to attacks of maniacal excitement which came on irregularly, recurring at the longest at intervals of a few weeks apart”; that, “apart from these attacks her condition is normal”; that “during these normal intervals, which, of course, are by far the greater portion of her time, she is thoroughly appreciative of the comforts of existence”; that “the lowest income which would be received by Mary C. Bringhurst, if she elected to take under the will, may be estimated at $3,235,” and “the highest income......from the estate which she might take, if she elected to take against the will, may be estimated at $3,956”; finally, that “the obvious purpose of the petitioners was to secure by an election of the widow to take against the will, an estate which would ultimately descend to the adopted children.” After finding a number of relevant underlying facts, the referee concluded that the income which Mary C. Bringhurst would derive from her share of the testator’s estate under his will was amply sufficient properly to provide for her comfortable maintenance; that, such being the case, the fact that the adopted children of two of the testator’s daughters would not inherit any of his property unless the prayer of the petition were granted, could not be considered; he recommended that the petition be refused.
When the report of the referee was presented to the court below for final action, before entering a decree,
The appellant attacks several of the findings of the referee and the final decree entered by the court below. While we realize that some of the underlying findings, involving calculations and estimates of the value of principal and income, may not be precisely correct, yet, we are not convinced of such substantial error as would justify a reversal, nor of an abuse of discretion in refusing permission to take against the will. There does not seem to be any very enlightening authority in Pennsylvania upon the subject before us, but Kennedy, Committee of Mahon, v. Johnston, 65 Pa. 451, while differing on its facts from the case at bar, contains relevant discussion which sheds some light upon the principles here involved. Speaking by Mr. Justice Agnew, we there said that, where a widow who had not elected to take against her husband’s will became weak in mind, necessitating the submission of the matter of such election to a Court of Chancery to act on her behalf, “the evident leaning of the law in the absence of an election of dower is toward the will,” adding, “The election of one of two things, when only one can be chosen for the lunatic, is undoubtedly a judicial, not a ministerial act......; the
We agree that in cases of this character the first consideration is the welfare of the widow, and .that the court is bound always to keep this in mind; but where, as here, the wife was confined in an asylum before the time of her husband’s death, and he provided for her with a full understanding of the circumstances, furthermore, where it is found that the income which she will receive under the will is amply sufficient properly to provide for her comfortable maintenance and support, and after her decease the property is eventually to become vested in her grandchildren, we cannot say that, where the avowed purpose is to divert part of the property away from these grandchildren to the adopted children of certain of the testator’s daughters, the court abused its discretion in refusing permission to take against the will, particularly where the widow, though possessed of long lucid intervals, during which “her condition is normal,” has not, so far as the record shows, expressed any personal desire in the matter.
It is evident from the referee’s report that the actual income which eventually will be received by the widow probably will be increased by several hundred dollars per annum over the stated estimate; finally, the record indicates a proper intention on the part of the court below to see that as much of this income as may be essential for the comfortable maintenance and support of
The assignments are overruled and the decree is affirmed; the costs to be paid by the appellant.