45 A.2d 411 | Pa. Super. Ct. | 1945
Argued November 19, 1945. This is an appeal from a decree of an orphans' court, and arises out of a widow's exemption.
James A. Murray died testate, leaving to survive him his widow, Bertha Murray. Letters testamentary were granted to Marjorie G. Paskins. The widow elected to *506 retain certain personal property which was set forth in an inventory and appraisement made by the appraisers appointed to appraise the other personal estate of the decedent. This was advertised by the register of wills in accordance with the rules of the Orphans' Court of Chester County. The decree of confirmation became final. Thereafter the widow had issued on petition a citation directed to the executrix to show cause why she should not pay or deliver to petitioner the goods and chattels adjudicated to be the property of petitioner as her widow's exemption by decree of the orphans' court confirming the appraisement of said property. Respondent, the executrix, in her answer, denied the right of the widow to the relief sought.
The matter was heard by the court, which by decree ordered that the executrix assign, transfer, and deliver to the widow the personal property adjudicated to her as and for her widow's exemption.
The executrix has appealed, and assigns as error only the entry of this decree.
Appellant states the question involved as follows: "Is a decree of court allowing a widow's exemption a valid judgment where the petition does not conform to the rules promulgated by the Supreme Court and no notice of the presentation of the claim for widow's exemption was served upon the executrix or her counsel?"
The only testimony printed in the record consists of one page, wherein appellant on re-direct examination testified that she had no notice from anyone prior to the issuance of the citation. Appellant did not print any of the other evidence, and the record contains no statement of facts agreed upon by the parties. There was no compliance with Rule 55 of this court, which provides for the elimination from the record of evidence which has no relation to or connection with the questions raised by the assignments of error. This rule requires that: ". . . appellant shall file in the court below, before he commences the printing of the record, a brief statement of *507 the questions he intends to argue on the appeal and of the evidence he does not intend to print, and shall serve copies thereof on appellee, together with a written notice that consent will be presumed if no objections are made within ten days thereafter, unless the court below, on cause shown, shall grant an extension of time. If objections are made, the court below shall forthwith fix a time for hearing them, and shall then decide the dispute in accordance with, and subject to the provisions of the Act of May 11, 1911, P.L. 279."
Appellee filed an answer objecting to the deletion of the record; and there is nothing to show that this dispute was decided by the lower court in accordance with the provisions of Rule 55. These rules are mandatory (Snyder's Estate,
We might very well conclude this opinion by dismissing the appeal. Appellant admits that the appraisement was duly advertised by the register of wills, and that it was confirmed by the orphans' court. Her reliance in this appeal is on the contention that there was an absence of actual notice to her of the claim, and that the decree of confirmation is consequently void. Appellee in her brief asserts that the complete record would have indicated that appellant had actual notice. The opinion of the court below, disposing of the matter before it upon citation issued on petition of the widow, states that there is no evidence of the fact averred by appellant that she "had no actual knowledge that the widow's exemption had been appraised and confirmed." Disposition of such matters requires the evidence presented before the court below; and this the appellant has failed to provide.
But as we shall point out, appellant cannot prevail in this appeal in any event. The widow's claim for exemption is governed by the Act of June 7, 1917, P.L. 447, § 12 (a), as amended, 20 Pa.C.S.A. § 471. This section provides *508
that the widow may retain or claim either real or personal property, or the proceeds of either real or personal property, belonging to the estate of her deceased husband, whose estate is being settled within this Commonwealth, to the value of $500. This section also provides that: "It shall be the duty of the executor or administrator of such decedent to have the said property, if personal, appraised and set apart to said widow or children by the appraisers appointed to appraise the other personal estate of the decedent." Section 12 (d) of the Act of June 7, 1917, P.L. 447, 20 Pa.C.S.A. § 474, reads in part: "Upon due proof of compliance with such requirements as to notice, by advertisement or otherwise, as may be prescribed by the orphans' court of the proper county by general rule or otherwise, such court may enter a decree directing payment of the money, or confirming the appraisement of the personal or real estate chosen by said widow or children, and said appraisement, signed and certified by the appraisers and approved by the court, shall be filed among the records thereof." It will be noted that there is nothing in either section of the act relating to actual notice or as to what shall constitute notice of a widow's claim to the executor or administrator of the decedent. In the present case the personal property was set apart to the widow by the appraisers appointed to appraise the other personal estate of the decedent. The statutory duty thus imposed upon the executrix was fulfilled. Upon request it was her duty to act (Compher v. Compher et al.,
Appellant also complains that the rules promulgated by our Supreme Court have not been followed. Section 5, Rule 1, of the Orphans' Court Rules,
Appellee contends that appellant merely attempts to collaterally impeach the decree of confirmation. The confirmation of an appraisement for widow's exemption is a judgment in rem, and ordinarily may be set aside only by direct attack on the decree of confirmation. Runyan's Appeal,
The decree of the court below is affirmed, and the appeal is dismissed at the cost of appellant.
To _______________________ of the Estate of _________________ late of ___________________ in the county of _______________ and State of Pennsylvania, Deceased.
I, _________________________ Widow of said Deceased, do elect to retain hereinafter-mentioned Personal Property of said Deceased, to the value of Five Hundred Dollars, and request that the same be appraised and set apart, according to law.
(Widow signs here) _______________________
This demand or notice is usually made a part of the widow's appraisement, and is followed by the oath of the appraisers, the inventory of the property elected to be retained by the widow, the certification and signatures of the appraisers, and the signed election of retention by the widow.