Estate of Potter , 6 Pa. Super. 627 ( 1898 )

Opinion by

Beaver, J.,

The facts of this case are peculiar, and its determination must rest lrpon those facts. They are very fully stated in the opinion of the presiding judge in the court below, and need not be specially recounted here.

The law is especially solicitous and careful — and rightly so —of childhood and old age. The rights of the latter are to be guarded with as much of carefulness and solicitude as the former. As the time approaches for the passage into what we call second childhood, which is practically as helpless as early childhood, there is no reason why the law should not exercise discriminating care in regard to transactions made with persons in the one class as in the other, and why it should not throw the same protection around both.

Eliminating from the consideration of the case the testimony in regard to misrepresentations which would amount to fraud, and threats which would amount to duress, which is not wanting, but which doubtless, on account of the age of the one witness and the youth of the other, was eliminated from the consideration of the case, both by the auditor and the court below, and which is in part at least denied, it clearly appears by the testimony of the appellant himself and from other testimony entirely undisputed, that the appellant came into the home of a widow woman who had reached the three score years and ten usually allotted to man, nearly a year after the death of her husband, when she and her granddaughter, about thirteen years of age, and a small boy, of ten or eleven years of age, were the only persons present — the man of the house, another grandson, a youth in his teens, being absent — with three papers previously prepared for her signature. One of these was the revival of a judgment obtained against her husband in his lifetime, in which she described, or is made to describe herself, as “ terretenant and owner of the real estate of said decedent by last will; ” another, a judgment note for three hundred and thirty-nine and -j-j^ dollars, with five per cent commission, and the other a paper purporting to be a waiver of her right to exemption from or out of the real estate of the decedent. None of these papers was read to the widow nor did she read them, for the reason probably, as she says, that she “ could not read writing to amount to anything.” It is alleged, both by the widow and her granddaughter, that she asked to have them read and objected to signing anything which she did not understand. It is clearly apparent that she was not only entirely ignorant of the contents of the papers which she signed, but that she was also ignorant of her rights as a widow. It nowhere appears in the testimony of the appellant, or elsewhere, that there was any agreement as to the extension of time for the payment of the debts of the deceased husband for any definite period. It would seem, therefore, as if the indefinite statement contained in the agreement waiving exemption had been inserted for the purpose of giving an apparent consideration for the execution thereof. Shortly after the execution of this paper, she became aware in some way of her rights as widow under the act of 1851, and some two years thereafter and eighteen days after the issue of letters of administration c. t. a., she presented her petition or election to have set aside and appraised to her, as her widow’s exemption, the sum of three hundred dollars out of said decendent’s estate, and elected to take the same from the real estate therein described. Appraisers were appointed, who returned that the real estate was of greater value than three hundred dollars, and could not be divided so as to set apart a portion thereof, to the amount of three hundred dollars, as the widow’s exemption. Exceptions were filed to this appraisement and, upon the confirmation thereof by the court, this appeal was taken.

In Whelen’s Appeal, 70 Pa. 410, this general principle, approved by the Supreme Court, is laid down: “ It is clearly settled that where, with a mistake in law, there is found mixed up other ingredients showing misrepresentations, stating that which is not true or concealing that which ought to have been made known, where imposition, undue influence, mental incapaciby or surprise are established, relief will be afforded to one who has thus been imposed upon and induced to do that which it is contrary to equity to maintain.” It is therein also held “ that, when a party has acted under a misconception or ignorance of his title, and has executed an agreement or conveyance to his prejudice, he will be relieved in equity.” The latter principle is quoted in Wilson v. Ott, 173 Pa. 253. See also Russell’s Appeal, 75 Pa. 269.

Applying these principles to the facts of this case, we are clearly of opinion that the confirmation of the widow’s appraisement should stand, and that the paper writing purporting to be a waiver of her right to exemption, having been executed in ignorance of its contents, which should have been communicated to her, and in ignorance of her rights as a widow, when she had no one with whom to advise, — her age, her failing memory and the other circumstances attending the execution of the papers being considered, — should not be allowed to interfere with her right to claim the benefit of the act of 1851, commonly called the widow’s exemption act.

Was she guilty of laches in making this claim? Under the circumstances, for the reasons fully and clearly stated by the court below, we think not. The will was not in the possession of the widow. It was not produced for a year after the death of her husband. Practically the entire personal estate had been exhausted in the payment of preferred debts. After the probate of the will, the appellant had the same right to require the issue of letters as had the widow to take them. It does not appear that he suffered by the delay, or that he incurred any expense in consequence thereof. On the other hand, the widow, by her agreement to the revival of the judgment obtained against the husband hr his lifetime, prevented the accumulation of costs. She made her demand upon the administrator c. t. a., eighteen days after the issue of letters to him. This case is easily distinguished, by its facts, from Kern’s Appeal, 120 Pa. 523. See Williams’ Estate, 141 Pa. 436.

Her election to take, under the terms of the will of her deceased husband, did not prevent her claim for the benefit of the exemption law, even if such election had'been made in a way which was binding upon her: Peebles’ Estate, 157 Pa. 605. The widow’s application was not made under the provisions of the Act of November 27, 1865, P. L. (1866) 1227— and the provisions of the said act did not, therefore, apply to the proceedings in this case.

The judgment against the husband revived against the widow as terre-tenant, and that against her were liens only upon her estate as devised under the will. They did not bind her interest under the exemption law, as widow, which was not real estate and which did not attach, until her claim was made.

The assignments of error are all overruled, the decree of the court below is affirmed, and the appeal dismissed, at the costs of the appellant.