Himes's Appeal , 1880 Pa. LEXIS 251 ( 1880 )

The judgment of the Supreme court was entered,

Per Curiam.

This contention is as to the right of the appellee to have, the property of her deceased mother, in value less than three hundred dollars, set off to her under the act of 14th April 1851. The appellee is a minor, and her mother, before and at the time of her death, was a widow. It is contended that the appellee is not entitled to it, under the authority of King’s Appeal, 3 Norris 345. In seeking to ascertain the true ruling in any case, due regard must be had to the facts on which it was decided. The contention there was between the husband of the deceased wife and her children. The children of the wife sought to claim it against the rights of her surviving husband. Here there was neither husband nor wife. It was the property of a widow, and the contention is between a creditor and her only child. No marital rights of a husband are invoked, and the child does not claim property derived from a wife, but from a widow. The facts are so essentially different that the rule declared in King’s Appeal does not apply. We adhere to the correctness of that ruling whenever applicable. To strain the principle there declared so as to control the present case, would do violence to its spirit and defeat the humane provisions of the statute. The learned judge was clearly right in distinguishing that case from the present, and committed no error in ordering the property to be set off to the minor child.

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