Jackson's Appeal
| Decision Date | 29 April 1889 |
| Citation | 126 Pa. 105 |
| Parties | APPEAL OF E. V. JACKSON, ADMR. [ESTATE OF CHARLES BARRY, DECEASED.] |
| Court | Pennsylvania Supreme Court |
[ESTATE OF CHARLES BARRY, DECEASED.]
Page 106
Before PAXSON, C. J., STERRETT, GREEN, CLARK and MITCHELL, JJ.
APPEAL FROM THE DECREE OF THE ORPHANS' COURT OF LUZERNE COUNTY.
No. 102 January Term 1889, Sup, Ct.
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Mr. John T. Lenahan, for the appellant:
Counsel cited: Section 11, act of April 8, 1833, P. L. 250; § 11, act of April 11, 1848, P. L. 537; Nickerson v. Bowley, 8 Metc. 424; Pickering v. Stamford, 3 Ves. Jr. 332, 492; Carman's App., 2 Penny. 332; Reed's App., 82 Pa. 428; Hancock's App., 112 Pa. 532; Melizet's App., 17 Pa. 450; Darrah v. McNair, 1 Ash. 236; Ex parte Kempton, 23 Pick. 163; Hoes v. Van Hoesen, 1 Barb. Ch. 379; Dicks v. Lambert, 4 Ves. Jr. 725.
Mr. Garrick M. Harding (Mr. Geo. K. Powell, Mr. M. Cannon and Mr. George W. Shonk, with him), for the appellees:
Counsel cited: Crozier's App., 90 Pa. 384; Reed's App., 82 Pa. 428; Carman's App., 2 Penny. 332; 3 Jarman on Wills, 36, *468; Redfield on Wills, Part 2, Election, § 90; McKeen's App., 42 Pa. 479; Lett v. Randall, 3 Sm. & Gif. 83.
PER CURIAM:
We think the Orphans' Court was clearly right in holding that the widow was not entitled to one half of the residue of the personal property undisposed of by the testator. The widow having died a few days after the testator, and having made no election, we must presume she takes under the will. The will gave her the full one third of all the estate of the testator, during her life. There was no intestacy of any portion of the estate, as to her. She gets the one third of it all, including
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that portion of which the testator died intestate. Taking her one third of the undisposed of surplus under the will, she cannot claim the one half of it against the will. In this respect the case differs from Carman's App., 2 Penny. 332, where the widow took specifically only certain portions of the estate, and the will itself gave her no part of the residue. So also in Reed's Est., 82 Pa. 428, the widow "was put to no election between her legacy under the will and this undisposed of estate." Here, the widow was put to her election as to the whole estate, as well that which passed by the will, as the portion as to which her husband died intestate.
The decree is affirmed and the appeal dismissed at the costs of the appellant.
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