Greiner's Appeal , 1883 Pa. LEXIS 124 ( 1883 )

Chief Justice Mercer

delivered the opinion of the court,

The election of Aim Lang not to take under the will of her husband was in writing. It was made about three months after the death of her husband. The notice was addressed to the executors and delivered to them. It is sufficient in form. The language does not express an intent to make an election at any future time. The election to take under the intestate laws and the refusal to accept under the will are both expressed in the present tense.

This was a sufficient assertion of her rights. She was not hound to file a copy of the no ice of record, nor was it necessary that she should forthwith resort to active legal proceedings to have her share or portion of the estate set off to her. In fact it was impracticable to do so until the debts of the decedent were paid and the estate settled. Then, and not till then, could the property to which she was entitled be ascertained.

By her election thus unequivocally made her right in the property became vested. The precise value of her interest was not then known, nor was the value of the interest of any heir of the decedent then known. Each was to be determined in the future. The mere fact that the widow died before her share was ascertained or set off to her, in no wise defeated the right of property which had vested in her under the election which she had made. At no time during the life of Mrs. Lang did she do any act indicating an intention to repudiate her election. On the contrary when she executed a receipt for money paid to her by the executors, she was careful to insert in the body of the receipt that she had elected tb take against the will. The election which she made vested i-n her, immediately and absolutely, one third of the personal estate of the decedent which remained after the payment of his debts, and the costs and expenses of administration.

The doctrine of advancement does not apply to a wife as to a child. There was therefore noj error in rejecting evidence that the testator, during his life, had caused several pieces of land which he had purchased, to be conveyed to his wife. "We discover no evidence in the case which precluded the widow from claiming under the intestate laws. Having so claimed, she died with her rights in the property unimpaired, and those rights passed to the appellees. We find no error in the record to correct. ' j

Decree affirmed and appeal dismissed at the costs of the appellant.