In re Estate of Woodburn

• Decision Date: 05 January 1891
• Docket Number: 210
• Citation: 138 Pa. 606,21 A. 16
• Parties: ESTATE OF SAMUEL WOODBURN, DECEASED
• Court: Pennsylvania Supreme Court

21 A. 16

138 Pa. 606

ESTATE OF SAMUEL WOODBURN, DECEASED

No. 210

Supreme Court of Pennsylvania

January 5, 1891

Argued October 22, 1890

APPEAL BY JAMES McMANNIS ET AL., TRUSTEES, FROM THE ORPHANS' COURT OF WASHINGTON COUNTY.

No. 210 October Term 1890, Sup. Ct.; court below, No. 48 August Term 1889, O.C.

On September 23, 1889, upon petition of W. M. Mustard and James McMannis, executors of the will of Samuel Woodburn, deceased the court below appointed Mr. J. F. McFarland auditor, to report, inter alia, a distribution of a balance remaining in the hands of said executors, as shown by their account filed and confirmed.

The following facts were found by the auditor:

Samuel Woodburn died in April, 1889, having made a will, duly admitted to probate after his death, which in addition to directing the payment of his debts and appointing the accountants his executors, provided as follows:

2. "I do give & bequeath to my wife (Mary Woodburn) the use of a one Third (1/3) interest in my estate (property personal and real estate), to be paid to her yearly by my executors hereinafter named.

3. "The use of the remaining two thirds (2/3), I direct to be equally divided between my five children (John, William Minnie, Samuel and Susannah,) or their lawful heirs, during the lifetime of my wife (Mary Woodburn), to be paid yearly to their guardian or on maturity to each one individually.

4. "I further devise that at the death of my wife my property be equally divided between my five (5) children or their lawful heirs."

On April 29, 1889, the testator's widow executed a paper accepting the provisions of the will, in the following form:

"I, the undersigned Mary Woodburn, widow of Samuel Woodburn, deceased, late of Hopewell township, Washington Co., Penna., hereby state that I have read the will of my said husband and know the contents thereof and the provisions therein made for me, and that I have chosen and elected and hereby do choose and elect to accept said provisions and to take and receive my share of my said deceased husband's estate under and according to the terms of said will, dated April 13, 1889, and probated in the register's office, Washington Co., Pa., 23d April, 1889.

"Witness my hand and seal this 29th day of April, 1889.

"MARY WOODBURN, [Seal.]"

This paper, after its execution, was placed on file in the register's office. It had been prepared by the executors, or some one for them, and was presented by one of them to the widow for her signature, without any explanation of her rights. She did not know what the paper was when she signed it, and did not know its effect or purpose until after the first meeting before the auditor. At that meeting she was present, was called as a witness by the attorney of the accountants, and testified that she signed this paper, after having heard the will read and knowing what its provisions were. But, at the second meeting before the auditor, she filed with him the following notice, marked exhibit A, verified by her affidavit made before the auditor:

"To Joseph F. McFarland, Esq., auditor, etc.:

"Please take notice that I, the undersigned widow of Samuel Woodburn, dec'd, decline to take under the will of my deceased husband, notwithstanding the paper signed by me electing to take under the same. That, at the time of signing said paper, I was wholly ignorant of my rights under the law. That I was in no way conscious as to what my rights or interests under my husband's will were, the same never at any time having been by any one explained to me prior to signing said paper.

"MARY WOODBURN."

Samuel Woodburn, in his lifetime, made an oil- and gas-lease of one of his farms to T. J. Vandergrift, for the term of three years, "and as much longer as oil or gas is found in paying quantities," granting to the lessee the exclusive right to operate for petroleum and gas on said farm. The lessee was to pay to the lessor $500 in hand and $6,750 in sixty days from the date of the lease, and to deliver to the lessor the one eighth part of all oil produced from the premises. At the time of the testator's death, three producing oil wells had been drilled, under the lease, and a fourth was then drilling, which was producing at the date of the auditor's first sitting. The fund for distribution included the proceeds of oil, run into the pipe lines to the credit of the testator, as royalty, during the testator's lifetime, and sold after his death by his executors, amounting to $697.57; and also the sum of $2,463.77 as the proceeds of oil, run into the pipe lines after the testator's death, in pursuance of the lease, and sold by the executors before filing their account.

The executors, before the settlement of their account, paid to the widow $140 on account of her share of the estate, and took credit therefor in the account, as a payment on distribution to "Mary Woodburn, widow, as legatee."

Upon the facts so found by him, the auditor reported, inter alia, as conclusions of law: (a) that the will created an active trust in the executors; (b) that the oil run into the pipe lines during the testator's lifetime was personalty and part of the corpus of the estate, but that the oil so run after his death was to be treated as a part of the profit or income of the real es tate, accruing while the land was in the hands of the executors, as trustees under the will, citing: Eley's App., 103 Pa. 307; Stoughton's App., 88 Pa. 201; Sanderson v. Scranton, 105 Pa. 469; 2 Bl. Com., 41; Holman's App., 24 Pa. 177; German v. German, 27 Pa. 118; distinguishing Duff's App., 21 W.N. 491; (c) that the widow was not bound by her first election, and her election to take under the intestate law, made before the auditor, was valid and effective, citing: Bradfords v. Kents, 43 Pa. 484; Kreiser's App., 69 Pa. 194; Bierer's App., 92 Pa. 266. He therefore reported a schedule of distribution accordingly.

Exceptions to the report of the auditor were sustained by the court, McILVAINE, P.J., in an opinion holding, inter alia, that the widow, having voluntarily and of her own free will once elected, in writing under her hand and seal, to accept the provisions of her husband's will, her power of election was exhausted, unless she could show that she was misled or deceived as to the provisions of the will or the extent of the estate; and that she could not change her election, against the objection and to the prejudice of the legatees, simply because she had become dissatisfied with her election as originally made, especially as the dissatisfaction evidently was the result of the proper construction of the will, she having been moved to repudiate her first election by reason of being informed that, under such construction, she would receive none of the money in the hands of the executors, but simply the income of the one third thereof. The opinion of the court stated, further, that as the widow had failed to appear and maintain her rights at the argument of the exceptions, the court inferred that she had become indifferent in the matter, in view of the finding by the auditor that the oil royalties, received since the testator's death, were income.

The report having been referred back to the auditor to prepare a schedule of distribution in accordance with the opinion, the auditor filed a second report, treating the widow as bound by her original election, distributing the proceeds of the oil produced after the testator's death among the widow and children as income, and awarding the remainder of the fund to the executors, to be held by them as trustees under the will. The auditor, however, embodied in his second report an explanation of his finding, in the first report, that the widow was not bound by her first election, as follows:

In his first report, the auditor found as a fact, that the widow had signed the paper accepting the terms of the will, but "did not know its effect or purpose until after the first meeting before the auditor." He relied upon the uncontradicted evidence of executor Mustard, the widow Woodburn, and her sworn statement, marked exhibit A. The executor, shortly after the testator's death, called upon the widow with the paper showing her acceptance of the terms of the will, but does not think he made any explanation of her rights under the will or under the law. He told her what it was for and she signed it. He further says that, at that time, he believed she took the same one third under the will, that she was entitled to under the intestate law. She says the executor explained to her that it was something relating to Mr. Woodburn's will; that he did not persuade her to sign that first paper; he just said it was a paper connected with the estate. The auditor believed that if she got any impression at all from executor Mustard, it must have been, that she was signing a paper which was to give her have been that she was signing a paper which was to give her the same one third she would have taken under the intestate law.

In this ignorant condition of mind, the widow, a spectator at the first meeting of the audit, was called by the attorney for the executors, without previous notice, without any attorney for her being present, as if on cross-examination; and, after being interrogated about other matters in aid of the estate, and without seeing the acceptance paper she had signed, was asked several questions concerning it. To these she answered, "Yes." The evidence as reported in the notes of testimony was the language of the attorney, to which the widow passively assented.

While the widow was not deceived or misled positively or intentionally, yet she was passive in the hands of those in whom she was confiding. To the auditor it seemed that the woman was ignorantly assenting to what she did not...