Baskin's Appeal

The opinion of the court was delivered,

by Woodward, J.

— The auditor decided that the personal property taken by the widow with the consent of the administrators was an election by her to retain it as part of the $300 allowed her by the Act of Assembly; and that her claim for an appraisement, not made until the summer of 1853 or 1854, and after the administrators .had appraised and sold the rest of the personalty, was too late, and that she must be held to have waived her right to that property.

Yet, after deciding these points in respect to the personalty, the auditor went on to decide that it was the duty of the administrators to make an appraisement of the real estate with a view of giving her, out of that, the balance of her $300. The real estate consists of 3-|- acres of land near the borough of Mercer, for which the decedent held articles of agreement in his .lifetime, and on which there was a balance of purchase-money overdue at his death. The administrators paid that balance, and took a deed conveying the fee to the heirs and legal representatives of George W. Baskin, deceased. The legal effect of this conveyance was, in the judgment of the auditor, to subject the land to whatever claims could be lawfully set up against the estate of the decedent, and he regarded the widow’s right to the residue of her statutory allowance as such a claim, and held that she might look to this land for satisfaction of it.

Without considering for the present the soundness of the auditor’s. construction of the deed, or entering into the question of the widow’s rights, either under the deed or in respect to the equitable estate of' which her husband died seised, it is sufficient for the purposes of the present case to say that the auditor erred in not holding the widow’s claim for an appraisement too late, as well in respect to the realty as to the personalty. In Davis’s Appeal, 10 Casey, it was decided that if the widow elect to retain less than the value of $300 she waives her claim to all which she neglects to claim. Her subsequent claim on the realty was held there to be too late. This case, and the others therein referred to, are decisive against Mrs. Baskin, on the point of time. She could not split up her demand into parts, claiming one part then and the other now. The statute entitled her to $300, to be claimed before the expenses of a full administration had been incurred. Because it was a personal right she might waive it; and, by claiming and taking but part, she waived the residue. And a waiver once made is past recall. It would be an intolerable inconvenience to administrators to allow a widow to take all she claimed out of the personal property, and then, after converting the residue and applying it to relieve the real estate of unpaid purchase-money, to allow her to come in and compel them to set off part of that to her. How are they to do it ? They took the deed to the heirs and legal representatives. They are not heirs, nor is it clear that they are representatives within the meaning of the deed. Would the Orphans’ Court have jurisdiction of an estate so held ? Is not the widow a “ representative,” and so a purchaser of the very estate which she calls on the administrators to divide to her ? These questions show into what embarrassments the widow’s unreasonable claim would plunge the administrators. And that, too, without the slightest equity on her part, for the proviso to the 5th section of the Act of 1851 is that her claim shall not affect or impair any liens for purchase-money of real estate. Her claim is virtually in opposition to purchase-money, for to that the proceeds of the personalty were applied. What rights she acquired thereby in the real estate, whether she is entitled to dower as widow, or to an undivided interest as a purchaser, is not now to be decided; but it is very clear that, whatever her rights, the statutory allowance is not among them.

Decree reversed at costs of appellee.