161 Pa. 360 | Pa. | 1894
All the facts, necessary to a proper understanding of this case, are clearly stated in the report of the learned auditor and opinion of the court below; and the controlling questions of law
Appellant’s right, if any she had. against the appellees, was under the following codicil to her husband’s will: “ Since making the foregoing will, I have married a wife, and being desirous of making suitable provisions for her, I hereby give and devise to my present wife Maria, the one third of the yearly income of any real estate of which I may die possessed and one third of my personal estate belonging to me at my death absolutely, in lieu of her dower at law. Should any of my real estate be sold, as provided in my will, she is to have the interest of the one third thereof during her life. In all other respects my will to remain as written on this page and the preceding.”
This gave her no estate in the lands which he had devised to his sons in fee. It is expressly declared to be “ in lieu of her dower at law.” At most it created a charge upon said lands, in her favor, to the extent of “ one third of the clear yearly income ” thereof. As found by the learned auditor, she received from appellees her full share of said income from the decease of her husband to July, 1860; since which time she has neither received nor demanded from them or either of them anything on account of income, nor have they or either of them since acknowledged their liability therefor, or in any manner recognized her right to claim or receive anything out of said lands. On the other hand, appellant herself testified that in July, 1860, she was notified by George Y. Meek, Jr., one of the appellees, that they (meaning himself and his brothers) would not give her anything more unless the law would give it to her. Notwithstanding this notice, she never commenced any proceedings or took any steps to enforce a recognition of her right until October, 1891, when her attorney notified appellees of her claim. Under these and other corroborating facts and circumstances, there was no error in holding that, according to the provisions of the seventh section of the act of April 27, 1855, P. L. 369, appellant was not entitled to recover: 1 Purd. 752, P. L. 18 (ed. 1873).
We find nothing in either of the specifications of error that requires a reversal or modification of the decree dismissing appellant’s petition. Decree affirmed and appeal dismissed with costs to be paid by appellant.
