Peebles's Estate

Opinion by

Mb. Chibs’ J usTrcE Stbbbbtt,

Our exemption act authorizes the widow of any decedent, dying in this commonwealth, testate or intestate, to retain real or personal property, belonging to said estate, to the value of three hundred dollars, and declares it shall be the duty of the executor or administrator of such decedent to have such property appraised in the same manner as is provided in the act of 1849. The only restriction contained in the act is that the widow’s claim “shall not affect or impair any lien for purchase money of such real estate.” In addition to that, it has been held that she cannot claim land or the proceeds thereof to the prejudice of her husband’s mortgagee. This construction necessarily results from the nature of the mortgage contract. While mortgages are commonly spoken of as mere securities for the payment of money, they are in fact defeasible conveyances or formal pledges of the land, and payment of the debt thus secured may be enforced by ejectment or foreclosure of the mortgage: Kauffman’s Ap., 112 Pa. 645; Gangwere’s Ap., 36 Pa. 466; Nerpel’s Ap., 91 Pa. 334; Wells v. Van Dyke, 109 Pa. 330. Subject to these restrictions, the widow may assert her rights, under the act, against the creditors of her husband’s estate, his devisees, legatees, or distributees under the intestate law, whether the estate bo solvent or insolvent, provided she has not by her own act forfeited or waived her right to do so. The statutory exemption in her favor may, therefore, be regarded as a preferred claim or gift of the law, prompted by considerations of public policy. As was said in Compher v. Compher, 25 Pa. 31, 34: “'So much of the estate is withdrawn from the general course of administration and specifically appropriated by law to the use of the ‘ widow and family; ’ and this is so, whether the widow elects to take under the will, if there be one, or prefers her statutory rights in the distribution of the estate.”

From the very nature and purpose of the preferred right given to the widow and attaching immediately upon her husband’s death, without regard to his solvency or insolvency, testacy or intestacy, it may be fairly inferred that he is powerless by any such testamentary provision as was made in this case to prevent her from freely exercising the right vested in her by the law itself.

In this case, appellant avers that on or about April 10,1889, less than three months after her husband’s death, she “ notified said executor that she demanded three hundred dollars to be paid to her under the widow’s exemption law; that said executor then refused and has ever since refused to pay her said three hundred dollars or set apart to her property to that amount, and now refuses to do so.” This averment of demand and refusal is not denied by the executor in his answer. On the contrary, he implied^ admits that appellant did claim the benefit of the exemption, and undertakes to justify his refusal thereof. After averring, in substance, that she informed him of her election to take under the will, he says: “Relying upon her election, so expressed to me, to take under her husband’s will, I proceeded to have the personal property of the testator appraised,” etc. And in the third paragraph of his answer he says: “I am advised by counsel and believe that the said Martha having elected to take under said will, is not entitled to demand and receive any other or further sum of or out of the estate of said decedent. And for that reason I have refused to pay her any money except in accordance with her said election.” The only ground of his refusal is thus distinctly stated, and it presents the only question in the case that is worthy of consideration. The ground, upon which the learned judge of the orphans’ court bases his order discharging the rule, is not only untenable, but it is not supported by the proofs in the case. As we have just seen, the answer does not deny appellant’s demand, — the most material fact in the case. It does deny some of the averments in the petition, in regard to domestic difficulties between the widow and her stepchildren, etc., but these are of little, if any, importance. And, even as to some of these, appellant is sustained by the testimony of her father. The learned judge was therefore mistaken in saying: “ This then is oath against oath, and for this reason the rule must be discharged.”

The executor having admitted that he ignored appellant’s claim and demand under the exemption law, because she elected to take under the will of her husband, the only question is whether he was justified in so doing. For reasons above suggested, we think he was not. Her election to take under the will did not in any manner interfere with her claim under the exemption law. There was therefore error in discharging the rule.

The order discharging said rule is reversed, with costs to be paid by the executor out of the funds of the estate; and it is now adjudged and decreed that said rule be reinstated and the cause be proceeded in to final order or decree in accordance with the foregoing opinion.