Heineman's Appeal , 1879 Pa. LEXIS 387 ( 1879 )

Chief Justice Sharswood

delivered the opinion of the court, November 17th, 1879.

We find nothing to correct in the decree of the learned court below. By the Act of Assembly of April 20th 1869, Pamph. L. 77, it is provided that, “ in case any person has died, or shall hereafter die, leaving a widow and last will and testament, and such widow shall elect not to take under the will, in lieu of dower at common law as heretofore, she shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this Commonwealth.” By the Act of April 8th 1833, Pamph. L. 316, “ where such intestate shall leave a widow and issue, the widow shall be entitled to one-third of the real estate for the term of her life.” It is evident that whatever disposition a testator may make of his real estate, whether specific or general, it passes to his devisees subject to the charge in favor of the widow of one-third interest therein for her life. It was strictly right then to award to the widow one-third of the rents of the store-house and lot on Fifth avenue in Pittsburgh, and the shares of the five children to whom the rents were specifically devised, were rightly reduced accordingly, namely, each one-fifth of the residue after deducting the widows share.

By the eleventh section of the Act of April 11th 1848, Pamph. L. 537, it is in like manner provided that, in case that the widow elects not to take under the last will and testament of her husband, she shall be entitled to her share of his personal estate under the intestate laws, that is, to one-third thereof absolutely. Of this it is not in the power of the husband to deprive her. But evidently he can dispose of the remaining two-thirds. If, therefore, after paying the widow one-third of the residue of his estate after debts, funeral expenses and the costs of administration, sufficient remains to satisfy his legacies, they are to be paid as provided by him, and the balance goes to his residuary legatees, if there is a residuary bequest, if not, then to the next of kin. If there is not enough to pay all the legacies they must abate according to the principles upon which, in other cases of a deficiency of assets, such abatement takes place. In Gallagher’s Estate, 26 P. F. Smith 296, we were called upon to consider the effect of an election by the widow to take against the will of her husband. It was there said: “The election of the widow does not destroy the right of the decedent to make a will and appoint an executor. The entire personal estate, bequeathed or not. vests in the executor in trust for administration and distribution: First. To pay debts and other legal claims. The widow electing to take under the will, has such a claim of which the decedent could not deprive her as he might deprive his next of kin of all claim, and give the entire residue to strangers. Over that residue he has entire power; he can carve it out and distribute it as he pleases, and in what order he pleases. His general and specific legacies must first be paid, and then if there is any-tiling left it goes to the residue.” It is clear then that the award of one-fifth of the proceeds of all sales to the appellant was right. Had it been as the fourth exception supposes, only one-fifth of two-thirds, it would certainly have been wrong, but that exception was not true in point of fact. The decree finds that under the trust created by the fourth and sixth clauses of the will the accountants have received proceeds of sales and household goods, &c., less expenses amounting in all to $8646.06. One-fifth of which, amounting to $1729.21, is to be invested as directed by the will in trust for Mrs. Matilda Heineman. The learned counsel for the appellant argued earnestly that, under the sixth clause of the will she was entitled to one-fifth of the entire personal estate. But the words restricting her to the proceeds of sales of property must be construed as limiting her to that portion only of the estate as was ruled in Hunter’s Estate, 6 Barr 97; German v. German, 3 Casey 116. Another position should be noticed, that as the appellant was deprived by the election of the widow of one-third of her share of the rent of the! Fifth avenue property, she -was entitled to be reimbursed out of the amount of the annuity of $1200 set apart by the will for the widow. How this was to be worked out, or out of what fund it is to come, has not been explained. In truth the simple rule is that, in these cases, whatever bequest to or provision is made for the widow in the will, is to be considered as if it did not exist. We think the learned court were right in not surcharging the executors with the stock of the Germania Savings Bank. It was sold at public sale, and we see no evidence of fraud in the transaction.

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