Countryman's Estate

Opinion by

Mb. Justice Mitchell,

The first nine assignments of error relate to findings of fact by the auditor approved by the court below. They must stand unless clearly erroneous. The decedent was living on the farm which he had bought, but had not fully paid for. The title was in his name and he dealt with the stock and products as 'if they were his own. The money with which the accountants were surcharged was admitted to have been the proceeds of sales of farm products and farm stock, and much the larger part of it was not only in his hands as money at the time of his death, but he was shown to have used and treated it as his own. The burden of showing the contrary was on the widow claiming it as hers. Whether the secret arrangement between husband and wife by which he “ delivered all I (he) have accumulated, and for the five years to come all is to belong to ” plaintiff could stand against his creditors we are not required to consider. The auditor found that the widow’s claim of ownership was not proved, and a careful reading of the evidence has not convinced us that his conclusion was wrong.

The objections to testimony cannot be sustained. That of Winters and Mary Shaffer bore upon the question in controversy, and that of Bowman and Annie Blough though apparently irrelevant, was not made the basis of any finding against the appellants, and therefore did no harm.

There remains only the question whether the claim of the widow’s exemption was too late, and Speakman’s Appeal, 71 Pa. 25, is relied upon to show that it was not. That was an extremely hard case where a frugal and industrious woman had with a small money-present from her father and her own labor without any assistance from an intemperate and improvident husband, accumulated a fund which she naturally con sidered and treated as her own. The auditor found expressly that ber claim was the result of a misapprehension of the law, and was entirely free from fraud. He also reported as a fact that there were no creditors of the husband opposing. This court was obliged to hold that her earnings were the husband’s, but accepting the auditor’s report as conclusive on the question of fraud and equity, allowed the exemption. The present is not such a case. The claim of the widow to the property was not based on any wrong view of the law bat on a dispute as to the facts, and the auditor while not finding fraud expressly, yet speaks of the claim as fraudulent. It is not necessary to go so far, or to suppose that her claim was fraudulently^ made. It is enough that she is making inconsistent demands. When objection was made to the account she had two courses open to her, to claim the money under the exemption law, or to maintain that it was her own, leaving her claim for exemption open as a charge on the rest of the estate. She chose the latter course, and in so doing became responsible for the delay and expense of the contest before the auditor. Having made her election, contested the matter to the end, and failed, she could not then go back to the other claim and enforce it without manifest inconsistency, and injustice to the exceptants. The auditor and court rightly held that she had waived her right to the exemption.

Decree affirmed.