Davies v. Murbach , 1901 Pa. Super. LEXIS 282 ( 1901 )

Opinion by

Orlady J.,

The distribution of the whole estate of Jacob Murbach was before the orphans’ court on the hearing of the exceptions filed by the defendant to the first adjudication. The plaintiff participated in that contest and claimed the whole balance as widow of the decedent, but claimed no part of it under the provisions of the Act of April 14, 1851, P. L. 613. She had made a former demand on the executor for her f300 widow’s exemption under that act, but did not follow it up when the fund was in court for distribution. Had she asserted her claim under her exemption demand at that time, it would doubtless have been allowed by the orphans’ court. Her contention for the whole fund was inconsistent with her widow’s exemption claim, at least to the extent of the overpayment which had been made to her “ on account of her bequest under the will.” These facts must have been well known at the time and she accepted the decision of the orphans’ court as conclusive by not taking an appeal from its decree. By her acquiescence in this decree, it became a final adjudication of this estate and is a bar to her action of trespass against this defendant “ for refusing to set apart to her on demand the three hundred dollar exemption as required by the Act of April 14, 1851.” While such a claim is regarded with favor by the courts, it is one which may be Yol. xvu — -14 lost by laches, or waived by conduct which is inconsistent with the demand: Kerns’s Appeal, 120 Pa. 523; Dorscheimer’s Estate, 12 Pa. Superior Ct. 34. The loss of her claim is not due to any act of the executor but to her own neglect in not urging it when the whole estate was before the orphans’ court for distribution.

The assignments of error are overruled and the judgment is affirmed.