50 Pa. Super. 76 | Pa. Super. Ct. | 1912
Opinion by
Helen W. Moore, a married woman, died on April 6, 1910, leaving to survive her a husband and collateral heirs only. In her will, duly executed before her death, she made certain provisions in favor of her surviving husband. In due time he filed his election to decline the provisions thus made for him and to take the share or portion of his wife’s estate allowed to him by law. In so doing he was exercising the right conferred on him by the first section of the Act of May 4, 1855, P. L. 430, which provides “That the power of any married woman to bequeath or devise her property by will, shall be restricted, as regards the husband, to the same extent as the husband’s power so to dispose of his property is restricted, as regards the wife, namely: so that any surviving husband may, against her will, elect to take such share and interest in her real and personal estate as she can when surviving, elect to take against his will in his estate,” &c. The statute thus, in clear and unambiguous language, first confers upon the surviving husband the right to take a certain interest in the estate of his wife notwithstanding any attempt by her to otherwise dispose of it by will; and secondly, it furnishes the measure of what he shall have the right to take when he so elects, to wit, “such share and interest in her real and personal estate as she can when surviving, elect to take against his will in his estate.”
Prior to the passage of the Act of April 1, 1909, P. L. 87, the ascertainment of the share of a wife’s estate which by law could be claimed by her surviving husband, when electing to take against her will, would have presented
(a) That the Act of 1909 deals only with cases of absolute and entire intestacy and was not intended by the legislature to be applicable where a deceased husband had undertaken to dispose of his estate by will and his surviving widow had thereafter exercised her right of election to take against such will. This question is not now a debatable one. Since the argument of the present appeal, the Supreme Court, in the estate of Joseph Guenther, deceased — in which an opinion has been recently filed and is not yet reported — has disposed of this precise question against the contention of the appellant. The opinion of Mr. Justice Mestrezat elaborately re
(b) That the language of the act of 1855, just quoted, must be read in the light only of the legislation then existing, fixing the quantity of a husband’s estate which the widow would be, by law, entitled to receive where she elected to take against his will; and that no amendment of those laws, after the act of 1855, which would enlarge the share previously given to the widow can be read into the latter act so as to correspondingly enlarge the share which the husband could take in the estate of his wife after the exercise of his right of election. As we read the opinion of the court, in the late case to which we have referred, this contention also is fully considered and the question cannot now be regarded an open one. It was there urged upon the court that because the widow’s right of election was conferred upon her by the acts of 1848 and 1869, the share of her husband’s estate which she could take, after exercising that right, must be such share only as would be allowed by the laws in force at the times of the approval of those acts respectively, “on the principle that if an act adopt the provisions of a preceding act, an amendment or repeal of the latter will not extend, limit or repeal the former.” The principle involved in that contention is elaborately reviewed, and the conclusion reached by the court may be indicated by the following language of the opinion: “When an adopting statute refers generally to the law affecting substantive rights, it evidently means that it is to be the law in effect at the time its provisions are invoked. It is the law, whatever it may be at the time the facts require its application,
Having thus disposed of the only two questions presented by this record and urged upon us in the argument of this appeal, we necessarily overrule the assignments of error and affirm the decree appealed from.
Decree affirmed.