43 A.2d 907 | Pa. Super. Ct. | 1945
Argued April 10, 1945. Appellant married Nicholas Sadowski in 1933; each had children by a former marriage. They lived together as husband and wife, except for seven months of the second year of their marriage, until some time after December 29, 1943, when he became bedfast and one of his daughters took him to her home. He died there, less than two weeks later, on January 15, 1944. Decedent had been taken to a lawyer's office by one of his daughters seventeen days before his death where he made a will. In it the sole bequest to his wife was $650, an accumulation of joint savings, in a bank account in their names as *121 husband and wife. The entire remainder of his estate he gave to his seven children. As survivor, the bank account passed to appellant by law, and it is obvious that the intent of the will was to bar her from any share in his estate.
Decedent's property consisted of a small house and lot in Erie where he and appellant lived; there was no other estate. Appellant elected to take against the will and petitioned for her widow's exemption out of this real estate. Thereafter Helen Kwiatkowski, one of decedent's daughters, produced a bond and a recorded mortgage on the land for $2,100, given by decedent to her on August 14, 1940. The executor moved the court for "a rule to show cause why [her] secured claim . . . in the nature of mortgage on real estate known as 220 Wallace Street, Erie, Pennsylvania . . . should not be adjudged a valid debt of the Estate and paid." The rule granted on this motion and the widow's petition for exemption were heard together. From the testimony taken on these issues the court found "that the daughter's claim based upon the bond and mortgage is a valid claim against the estate" and further, that appellant had forfeited her right to an exemption as widow by conduct which terminated the marriage relation "a few weeks before decedent's death." The court ordered distribution accordingly, although there was no fund to distribute. We are of the opinion that appellant's claim of exemption as widow should have been allowed and the finding that the mortgage was a valid lien against decedent's land, was gratuitous.
The widow's exemption is not an interest passing under the intestate law. It is a gratuity payable to the widow unless she has "forfeited her rights". Fiduciaries Act of June 7, 1917, P.L. 447, § 12(a), 20 PS 471; Hildebrand's Est.,
We are unable to find support in the testimony for the conclusion of the court that the marital relation "had been terminated because of the misconduct and neglect by the widow necessitating [decedent's] removal from the widow's domicile to that of a daughter in order that he might receive proper care and nourishment." The parties had lived together for almost ten years. The separation is not chargeable to the wife but was brought about by the husband's children and against his will. Appellant had worked as a chambermaid in a hospital for twenty years. The hours of her employment were from 6 A.M. to 1:30 P.M. and her failure to quit work did not deprive her husband of necessary care. Decedent was able to be about and was not helpless until after December 29, 1943. He had not been working; the wife's earnings were the sole income available for the maintenance of the household, and the only reserve was the joint bank account above referred to. It is of some significance that in spite of quarrels about money matters and the not-unnatural willingness of the husband to favor his children in disposing of his property, yet in his *123 will made about two weeks before his death he referred to appellant as "my beloved wife, Amelia". Words must be given some meaning. Decedent's children admittedly were antagonistic to appellant. She and her witnesses denied the charge that she failed to give her sick husband necessary care. In any view, the testimony is insufficient in law to establish that the family relation had ceased to exist.
When the court found, though mistakenly, that appellant had forfeited her right to a widow's exemption, the jurisdiction of the court ended. On allowance of the exemption and in subsequent proceedings to enforce its payment out of the real estate, the validity of the mortgage given by decedent may become an issue, properly for the orphans' court. But the order in this proceeding, determining the status of the mortgage as a valid lien, was premature at least. That question was not then within the jurisdiction of the court.
The mortgagee at the hearing asserted that decedent had given the mortgage as security for money loaned by her to him. It was appellant's contention that it was given without legal consideration and fraudulently, in an effort to bar her interest under the intestate law, in the nature of dower. If there had been a fund before the court for distribution the question of the validity of the bond and the mortgage properly might have been decided in determining what appellant was entitled to as "statutory heir". Cf. Tubbs's Appeal. Tubbs's Est.,
Testator not only authorized, but positively directed, his executor to convert his real estate into cash, with authority to execute and deliver proper deeds of conveyance to the purchaser. Although the will contemplated conversion of testator's real estate (Shareff's Estate,
Appellant at the hearing, questioned the jurisdiction of the court. We have examined all of the acts of assembly which conferred jurisdiction on the orphans' court both before and after the constitution of 1873, and are of the opinion that appellant's objection on jurisdictional grounds should have been sustained.
Order reversed and the record is remitted for further proceedings in accordance herewith. *125
