Bell's Estate , 1938 Pa. Dist. & Cnty. Dec. LEXIS 212 ( 1938 )

Bolger, J.,

The question raised by these exceptions is whether an adult daughter, forming part of the family of decedent, is entitled to the $500 exemption. Decedent was survived by his widow, who by reason of mental and physical incapacity, failed to claim the exemption, and died within 10 weeks of her husband’s demise. The exemption is opposed by a creditor of decedent.

The Fiduciaries Act of June 7, 1917, P. L. 447, sec. 12 (a), grants the exemption to “The widow, if any, or if there be no widow, or if she has forfeited her rights, then the children forming part of the family of any decedent”.

Where a widow survives who is entitled under the act, she takes the exemption to the exclusion of the children: Nevins’ Appeal, 47 Pa. 230; and if she waives the privilege of the act, it is lost to the family: Staley’s Estate, 21 Dist. R. 72. See also Wanger’s Appeal, 105 Pa. 346, and Henkel’s Estate, 13 Pa. Superior Ct. 337, 341.

The right to the exemption is a personal right, and the death of the widow without demand is a waiver: Desmond’s Estate, 28 Dist. R. 231, where the widow survived decedent by but 11 days. In McClintock’s Estate, 240 Pa. 543, the right to elect to take against a will, which is also a personal right, was lost by death within two days.

As pointed out in Henkel’s Estate, supra, the purpose of the legislation is to protect the family from financial distress immediately after the death of the spouse or parent, and during the process of the settlement of the estate. There is nothing on the record to show why this claim could not have been made by someone on behalf of the widow, in which event it would have been set apart for her in her lifetime, and would now be available for the payment of the debts incurred for her maintenance. This cii'cumstance, however, bears no weight in the legal determination of the question.

The argument of exceptant is to the effect that the purpose of the act is to award the exemption in the alternative, that is, if the widow does not receive it, then it shall be payable to the children who were members of decedent’s household. Unfortunately, the act does not support this broad construction. The right of the widow to take if she survives is clear, unless “she has forfeited her rights”. We take it that the forfeiture must occur during the lifetime of decedent, because the rights of the parties are determined as of the date of his death.

The sympathies of the court in this case are with ex-ceptant, who under the facts appears to have been a devoted and loving daughter, and whose claim has been so ably presented by her counsel. Unfortunately, the right claimed is a statutory one, and reluctantly we must hold that the auditing judge was correct in his conclusion, namely, that the act denies the right of claimant, and that the remedy for the correction of any possible injustice in future cases lies with the legislature.

The exceptions are dismissed and the adjudication confirmed absolutely.