Scott's Estate , 1901 Pa. Super. LEXIS 192 ( 1901 )

Opinion by

Rice, P. J.,

It has been said repeatedly that the right of the widow under the act of 1851 “ is a right sub modo to be asserted in the manner pointed out by the act,” and that ordinarily there must be an appraisement. B ut as was said by Woodwakd, J., in Nottes’s Appeal, 45 Pa. 361, it is necessary, in dealing with the multifarious cases that arise under the widow’s law and the exemption law to distinguish carefully between their respective facts, and not to imagine similitudes where none exist. When the court said in Hufman’s Appeal, 81 Pa. 329, that the widow had not qualified herself under the statute to participate in the distribution of the fund arising from the sale of real estate, and that an appraisement was the sine qua non of such qualification, the learned justice who delivered the opinion was speaking of a case where the widow was administratrix and where she had wholly neglected to have the real estate appraised. The omission to have an appraisement made was her own act, and it was upon that ground that her claim was disallowed. If this is not the true construction of the decision, it is not reconcilable with the decision in Thomas’s Estate, 152 Pa. 63, where it was held that where a widow makes a demand for an appraisement of real estate, she may claim her exemption out of the fund arising from the sale of the same, although the administrator has neglected to have an appraisement made. See also Bower’s Estate, 17 Pa. Superior Ct. 59. Here the widow was guilty of no laches ; she elected to take her exemption out of the personal and real estate of the decedent, and appointed appraisers who were duly sworn and who attempted, to say the least, to perform their legal duties. If she has lost her right it is solely because the appraisement they made is so radically defective that the decree of confirmation whereby she was awarded the sum of $233.99, out of the real estate described is a mere nullity. We do not think it can be so regarded. It is an allowable inference from the return of the appraisers that they ascertained that the land could not be divided without prejudice to or spoiling the whole, in short that land could not be set apart to her in satisfaction of her claim, and therefore they awarded to her a certain sum of money “ to be paid out of the real estate,” describing it. This we say is an allowable inference from the return which in the collateral proceeding in which the decree of confirmation was attacked arose to the dignity of a legal presumption. We therefore concur with the court below in the conclusion that the court had jurisdiction of the matter and its decree, until reversed, is conclusive upon all parties.

In view of the amount of the fund and the duties and responsibilities devolving upon the accountant, we are of opinion that the commissions charged by her were reasonable.

All the assignments of error are overruled, the decree is affirmed and the appeal dismissed at the costs of the appellants.