28 Pa. Super. 474 | Pa. Super. Ct. | 1905
Opinion by
W. P. Murray died on July 7, 1901, leaving a widow, the appellant, but no children. By his will, which was duly proved, he made certain provisions for his widow, and gave the residue of his estate to his six brothers and sisters, in varying proportions, and of the will appointed his widow, the appellant, and B. H. Murray, his brother, executrix and executor. The widow renounced her right to act as executrix and, on August 22, 1901, letters testamentary were issued to B. H. Murray, the appellee. The widow, on July 3, 1903, filed her declaration declining to accept under the will, and it does not appear that prior to that time the executor, the appellee, had any notice that the will was not to be executed according to its terms. B. H. Murray was a legatee and devisee under the will, as well as executor, and the action of the widow, in refusing to take under the will, resulted in decreasing the amount which he would have been entitled to receive out of the estate, had the will been executed according to its terms. In that clause of the will appointing Elizabeth A. Murray and B. H. Murray to be executrix and executor thereof, there was this provision: “ And for compensation for the collection, and distribution of my personal property to receive $100 each. Then for all other money received and paid out to get five per cent, to be divided according to service done.”
The executor having filed his account, the appellant filed a number of exceptions which were passed upon by the court below and the only question involved in this appeal relates to the commissions of the executor. The court below awarded commissions in the amount of $838.68, being four per cent upon the amount of money which had passed through his hands, and there is no allegation that this was more than reasonable compensation for the service performed. The appellant contends, however, that the commissions of the executor should be limited to the $100, “ compensation for the collection and distribution of personal property,” as provided by the will, under which she had declined to take.
The appellant having declined to accept under the will, the intestate laws supersede the will as to her ; as to her there is no will, and her rights are to be determined as if none had ever been written: Hoover v. Landis, 76 Pa. 354; Cunningham’s Estate, 137 Pa. 621. Having elected to set aside the will so far as she was concerned, and thereby decreased the
The' decree is affirmed.