Kennedy v. Johnston
1870 Pa. LEXIS 253
Pa.
1870
Check Treatment

The opinion-of the court was delivered, July 7th 1870, by

Agnew, J.

Robert Mahon, the husband of Sally Mahon, died in May 1845, and she was not declared a lunatic until August 1867. During all this interval she took under the will of her husband the provisions made for her. Had she been sane there could be no doubt-that the acts of acceptance under the will, as given in evidence, would have been deemed an election in pais and barred her dower: Cauffman v. Cauffman, 17 S. & R. 16; Light v. Light, 9 Harris 407; Bradford v. Kents, 7 Wright 474. But if she were insane from the period of her husband’s death, of which there was some evidence, she was without capacity to elect, and this raises the only question we need discuss — the power of Dr. Kennedy, as her committee, to elect for her without the sanction of the Court of Common Pleas. In view of the doctrine of election as administered in equity, and of the powers conferred on the committee of a lunatic, which are entirely statutory, he had not the power without application to the court. Under the 11th section of the Act of April 1833, relating to wills, a devise or bequest by a husband to his wife, of any portion of his estate or property, is deemed and taken to be in lieu of her dower in his real estate, saving her right to elect her dower, which means at common law: Shaffer v. Shaffer, 14 Wright 394. She is therefore put to her election between the provisions of the will and her dower, while her default to appear and elect under the Act of 29th March 1832, § 35, Pamph. L. 200, after citation served, is deemed to be an acceptance of the provision of the will, and bars dower. The evident leaning of the law, in the absence of an election of *455dower, is toward the will. The choice thus presented by the law is one for a. judicious consideration — one of judgment to be exercised upon a view of the circumstances. The right is also personal, to be exercised by the widow herself, or if she be incompetent because of unsoundness of mind, by the court which has the care of her estate, unless there be a statutory power committed to the committee. In Maryland and North Carolina, it has been held that her right of election is personal and can be exercised only by herself: 1 Washb.on Real Prop. 272*, citing Boone v. Boone, 8 Harris and McHenry 93; Collins v. Carman, 5 Md. 503; Lewis v. Lewis, 7 Iredell 72. In England, in eases of election generally, the jurisdiction is exercised by the Court of Chancery, which has also the care of the persons and estates of persons non compotes mentis: 2 Maddock’s Ch. 48 to 60; 2 Story’s Eq., §§ 1075, 1077, 1080, 1097; Cauffman v. Cauffman, 17 S. & R. 24, 25, 26. In the case of infants and married women, the Court of Chancery, when necessary, will refer the matter to a master to inquire as to what would be most beneficial to the infant or feme covert, in order to make the proper decree. See authorities collected in note, White & Tudor’s Leading Cases in Equity, p. 272. Also note to Lady Cavan v. Pulteney, 2 Ves. Jr. 563, Sumner’s Ed.

In this state the 5th Article of the Constitution, § 6' confers on the Court of Common Pleas the power of a court of chancery, so far as relates (inter alia) to the persons and estates of those who are non compotes mentis. The Act of 13th June, 1836, relating to lunatics and habitual drunkards, Pamph. L. 592, was passed to carry out this provision of the Constitution. It is under this act the committee derives all his powers, and unless the power to elect can be found in the law or be fairly inferred from its general terms, it does not exist. It is obvious, there is no such power conferred in words general or special, and there appears to be nothing in the character and nature of the duties enjoined from which the power can be drawn. When properly qualified the law confers on the committee the management of the real and per-. sonal estate of the lunatic with power to apply the income only to the payment of his debts, and the support of himself and his family. But beyond this the committee cannot go in disposing of the estate without the aid or sanction of the court. If the income be insufficient the principal cannot be used, or the real estate converted without the direction of the court. To the court belongs the power of making orders touching the care and custody of the person, and the management and safekeeping of the estate of the lunatic, necessary and proper for the purpose. The election of one of two things when only one can be chosen for the lunatic, is undoubtedly a judicial not a ministerial act, and belongs to the pourt and not to the committee. The act of election settles the *456title, and makes that absolute which was before uncertain and optional. Where the title may attach to either of two subjects of property by election, it requires a comparison of benefits, and a choice to settle the title upon one of them absolutely. This the committee undoubtedly cannot do from the provision of a mere power of management, for that implies a title already to the thing to be managed, and for the same reason the power to elect does not flow from a power to sue for and recover the property of a lunatic. It also implies a pre-existing title in the lunatic; while the election is required to be made before title absolutely accrues. It was therefore not in the power of the committee of his own motion to relinquish the provision made for the wife in the will of the husband, and cast himself upon the dower. It was his duty to apply to the Court of Common Pleas having jurisdiction over the person and estate of the lunatic for leave to elect the dower, which the court would grant only on due consideration of the advantages and disadvantages of the choice. After such a decree be could then proceed to have a record of his election made in the Orphans’ Court, under the provisions of the Act of 29th of March 1882, and be in a position to recover the dower if denied to him.

This substantially disposes of all of the errors assigned, and the judgment is affirmed.