Estate of Cunningham

Citations

• 137 Pa. 621
• 27 W.N.C. 65
• 20 A. 714
• 1890 Pa. LEXIS 1005

Syllabus

<p>1. The widow of a testator must make her choice between acquiescence in her husband’s disposition of his property, and the assertion, in disregard thereof, of the rights which the law gives her; she cannot take both these courses or parts of each.</p> <p>2. The necessity of making such a choice, and its effect, do not legally depend in any degree upon the quantum of benefits she receives or renounces under the will, nor upon the mention or omission of her name or the presence or absence of any provision for her therein.</p> <p>3. When a testator by his will directs the sale of his real estate, and his widow elects to take her rights under the intestate law, as to her there is no will and no conversion, and she cannot assert such rights against the proceeds of the converted real estate as personalty.</p> <p>4. As the widow’s rights are paramount to her husband’s power of disposition, she can claim, at her election, her statutory estate in Ms land, as such, and in law it is this only to which she becomes entitled, as realty, upon electing to take against the will of her husband. .</p> <p>5. In equity, however, by acquiescing in a sale made by the executor under a power in the will and claiming the proceeds, she may cause the land to pass to the purchaser discharged of her dower, and may thus become entitled to a corresponding interest in the proceeds of such sale.</p> <p>6. When a widow is claiming, upon a distribution in the Orphans’ Court, adversely to the will of her husband, the question whether a formal paper, electing to take against the will, was filed by her voluntarily or under stress of an order of court, is immaterial; such a writing is unimportant except as evidence.</p>