Raymond Moore Remick.

The statutory law of decedents' estates in Pennsylvania, with annotations and forms online

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not as surviving spouse, but as a legatee, to whom is given a choice of two



156 WILLS ACT SECTION 21

bequests. But the answer is that, so far as the widow was concerned, the
will was revoked by the statute, Wills Act of 1917, Section 21, reenacting
the Act of April 8, 1833, Section 15, P. L. 3*5. and expressly declaring
that where the testator, after making his will, shall afterwards marry,
such person, so far as shall regard the surviving spouse, shall be deemed
and construed to die intestate. The word 'or* in this connection, may,
therefore, fairly be construed to be used in its epexegetical or explanatory
sense, as equivalent to the words 'that is to say.'" Greaves's Est., 29
Dist. 577.

In a case where a common law marriage was not successfully proven,
Solly, P. J., held : "Section 21 of the Fiduciaries Act (should be Wills Act)
provides, When any person, male or female, shall make a last will and
testament and afterward shall marry * * * and shall die, leaving a sur-
viving spouse * * * every such person, so far as shall regard the sur-
viving spouse, * * * shall be deemed and construed to die intestate ;
and such surviving spouse * * * shall be entitled to such purparts,
shares and dividends of the estate, real and personal, of the deceased,
as if such person had actually died without any will.' The person shall
be deemed to die intestate, and the surviving husband shall be entitled
to the same share in the estate of his wife as if she had actually died
without any will. This language is plain and clearly expresses the intent
of the Legislature. If a person makes a will and afterwards marries and
dies, leaving a spouse surviving, his or her will is of no effect as to said
spouse and he or she shall be construed to die intestate, and the surviving
spouse shall have such share of the estate as if there was no will, as if
the spouse had actually died without a will. If, therefore, there is no will
in law, as to the surviving spouse, he or she is entitled to such share of
the deceased spouse's estate as if there was an actual intestacy, and the
Intestate Act of 1917 provides what that share shall be. * * * It is con-
tended by the surviving husband that there is in this case a partial in-
testacy. We think if he was not the husband of the testatrix when she
made her will, but afterwards married her, there was an intestacy, and
she is to be deemed and construed to die intestate, by the express language
of Section 21 of the Wills Act of 1917, and he is entitled to the share of
his wife's estate as provided by Section 2 of the Fiduciaries ("Intestate")
Act These are the plain and unmistakable constructions to be placed
upon the two acts." Pfanenschmidt's Est., 35 Montg. 135.

REVOCATION BY BIRTH OF ISSUE.

Under this section of the Wills Act the birth of a child subsequent to
the making of a will by its parent operates as a revocation of the will, so
far as the will is an execution of a power of appointment, where the
child takes under the donor's will in default of appointment, to the extent
of such child's alternative rights. Shoch's Est., 29 Dist. 1163, aff'd in
271 Pa. 158.

REVOCATION BY ADOPTION OF CHILDREN

Where decedent, subsequent to date of his will adopted two children
by formal proceedings, the court in considering the election of the widow



WILLS ACT SECTIONS 21-22 157

to take under the will, and after quoting the i6th section of the Intestate
Act and the i6th section of the Wills Act to show that therein the legis-
lature had in mind the rights of adopted children, held:

"But since the legislature seems to have been so careful to make it clear
in these sections that adopted children are to be included in these provi-
sions for children generally, it seems quite clear that such was not the
intention in so far as regards the provision in Section 21 relating to the
rights of children born after the making of a will. Certainly, if the
legislature had considered the language of the Adopting Act of 1915 or
the Intestate Act of 1917, efficacious to make language used in the 2ist
section of the Wills Act include adopted children, it would not have
thought it necessary to incorporate Sections 8 and 16 in the Wills Act.

"I am therefore of opinion that the legislation of 1917 does not
change the law in Pennsylvania that adopted children are not entitled
to any rights in their adopting parent's estate where the adoption takes
place after the adopting parent has executed a will and this whole estate
will in accordance with this opinion be distributed under the terms of
the will." Boyd's Est., 50 Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. 504.

"It is well known that the latter act (Sec. 21 of Wills Act of 1917)
was framed by a commission, singularly competent on the branch of the
law with which it had to deal, and that its report to the legislature was
adopted substantially without change. This commission, and the legisla-
ture, knew the state of the law as to adopted children as it then was,
and did not, so far as the rights of those adopted after the making of a
will are concerned, place them in the same position as children of the
adopting parent. Nothing is said in the act as to adopted children; but,
on the contrary, it refers "to a child or children born after the making of
the will." As the right of inheritance is purely statutory, and he who
claims a share in the inheritance must point to the law which transmits it
to him, we are constrained to hold, by the very words of the act and in
agreement with the reasoning in Goldstein v. Hammell (236 Pa. 305),
that the appellants can assert no interest in the estate of their adopted
father. If it is deemed wise to provide that adopted children shall have
the rights here claimed for them, the legislature can extend the law to cover
them; we cannot." Per Mr. Justice Schaffer in affirming Boyd's Est.,
supra, in 270 Pa. 504.

See now however, Act of May 20, 1921, P. L. 937.

244. FORFEITURE OF RIGHTS BY DEVISEE OR
LEGATEE WHO MURDERS THE TESTATOR.

SECTION 22. No person who shall be finally adjudged guilty,
either as principal or accessory, of murder of the first or second
degree, shall be entitled to take any part of the real or personal
estate of the person killed, as devisee or legatee or otherwise under
the will of such person.

NOTE. This is a new section, corresponding to Section 23 of the new
Intestate Act. (See 347 infra.) See the note to that section.



158 WILLS ACT SECTION 23 (a)

245. ELECTION TO TAKE UNDER OR AGAINST
WILLS, RIGHT OF SURVIVING SPOUSE TO
TAKE AGAINST WILL OF DECEASED
SPOUSE.

SECTION 23. (a) When any person shall die testate leaving a sur-
viving spouse, who shall elect to take against the will, such surviv-
ing spouse shall be entitled to such interests in the real and personal
estate of the deceased spouse as he or she would have been entitled
to had the testator died intestate : Provided, That nothing herein
contained shall affect the right or power of a married woman, by
virtue of any authority or appointment contained in any deed or
will, to bequeath or devise any property held in trust for her sole
and separate use.

NOTE. This is a new section, framed to make the rights of husband and
wife the same in electing to take against a will. The proviso is copied
from Section i of the Act of May 4, 1855, P. L. 430, 3 Purd. 2460.

The adoption of this section involves the repeal of Section n of the Act
of 1833, i Purd. 1275-6; Section u of the Act of April n, 1848, P. L. 537,
I Purd. 1276-7; Section i of the Act of May 4, 1855, supra; and Section
i of the Act of April 20, 1869, P. L. 77, i Purd. 1278.

See forms 69-7. See Flower's Est., 30 Dist. 967.

As against the more certain provisions of Section 2 (a) of the Intestate
Act, it was held that the election by a widow to take against a will did
not create under this section of the Wills Act, such an intestacy as would
entitle her to the allowance of $5,000 provided in the said section of the
Intestate Act. Collom's Estate, 47 Pa. C. C. 434, 28 Dist. 503.

"The situation confronting us is the provision of the Wills Act that the
spouse taking against the will shall take as he or she would have been en-
titled to had the testator died intestate and the provision of Section 2 (a)
of the Intestate Act as amended. The intention of the legislature to dis-
tinguish between a surviving spouse of a testate and an intestate is per-
fectly apparent from the text of the proviso in the Intestate Act. With
no other law in the statutes of the commonwealth providing what should
be taken by the surviving spouse of a deceased testate who might elect to
take against the will, this would have barred him or her from partici-
pating in the distribution of the estate. With the provision which is con-
tained in the Wills Act, it might have been construed that the surviving
spouse takes in the same manner and amount as the surviving spouse of an
intestate. That, however, is not before the court for determination, but
the intention of the legislature to place them on a different basis as to
inheritance is emphasized by the amendment of July u, 1917, P. L. 755.
Clearly, it was the intention of the legislature that the surviving spouse
of one dying testate, who elected to take against the will, should not enjoy
the full benefits enjoyed by the surviving spouse of an intestate and that
she should not enjoy the benefits of the five thousand dollars in value.
Therefore, we hold that the surviving spouse of one dying testate, electing



WILLS ACT SECTION 23 (a) 159

to take against the will of the deceased spouse, is not entitled to the
$5,000 in value, but takes in accordance with the provisions of Section
2 (a) of the Act of Assembly of June 7, 1917, P. L. 429, as amended by
the Act of July n, 1917, P. L. 755-" Shull, P. J., in Langerwisch's Estate,
47 Pa. C. C. 121, 28 Dist. 470, 8 Lehigh 147, affirmed in 267 Pa. 319, no
Atl. 165.

The fact that the testator directs a sale of his real estate, thus working
a conversion, and impressed the proceeds with a trust in favor of his
widow and others, does not preclude the widow who elects to take against
the will from taking her interest in the real estate as realty, and de-
manding that it be set apart for her in severalty.

"When the widow perfected her election to take against the will, she,
thereupon, under the laws of the commonwealth, became invested with a
fixed interest in the decedent's real estate specifically as land and by her
said action did not thereby become entitled to receive merely a portion of
the proceeds to accrue from a sale thereof. Her rights upon such election
are defined by the Wills Act of 1917, P. L. 403, which, being in force and
effect at the time of her husband's death, governs and controls his estate
and the administration and devolution thereof. Clause (a) of Section 23
of that statute provides, that in the event of a surviving spouse's electing
to take against a decedent's will, 'such surviving spouse shall be entitled
to such interests in the real and personal estate of the deceased spouse
as he or she would have been entitled to, had the testator died intestate.'
Note particularly that the statute, in plain language, gives the surviving
spouse an interest in specific real and personal estate as such and not
merely in the proceeds thereof or any substitution therefor. Now, had
the decedent died intestate, there would of course have been no will, and,
as to the decedent's real estate, the widow, upon his death, would have
inherited a specific interest in the land itself. Under such circumstances
there could, by no possibility, have been any proceeds of or substitution
for, the real estate for her consideration. The said statute in the clearest
language imaginable gives to, and vests in, her a share of the land itself.
Such has always been the quality or kind of interest, to wit, an interest
in land itself, which the laws of the Commonwealth of Pennsylvania have
vested in widows, upon their electing to take against their husband's wills.
Under Section n of the Wills Act of April 8, 1833, P. L. 250, a widow
electing to take against her deceased husband's will became entitled to
common law dower in his real estate, to wit, a freehold interest therein :
Watterson's Appeal, 95 Pa. 312 (1880). The Act of April 20, 1869, P. L.
77, changed the share of a widow electing to take against her husband's
will from common law dower to so-called statutory dower. Thus, it is
seen that under both of these older statutes the interest which vested in
a widow upon her electing to take against her husband's will, was a share
of the land itself and not of the proceeds of the sale thereof or substi-
tution therefor. The precise language of the said provision of the Act
of April 20, 1869, P. L. 77 (changed only so as to include surviving hus-
bands), has been reenacted and now forms a part of said Section 23 of
the Wills Act of 1917, P. L. 403 ; hence the decisions under the former
act apply with equal force and effect to the same provisions incorporated
in the later statute." * * * "Upon deliberating on the unequivocal



160 WILLS ACT SECTION 23 (o)

language of the said pertinent statutory provision which applies to and
controls the present estate, its administration and devolution, to wit,
Section 23 of the Wills Act of 1917. P. L. 403, and, guided by the light
afforded by the authorities recited, we reach the legal conclusion that
upon the petitioner's electing to take against her deceased husband's will,
she then became entitled to and was invested with, inter alia, a one-half
part, share or interest in his real estate which forms the subject matter
of this proceeding; and that her ownership of such part, share or interest
incidentally carries with it, the absolute right to have the same cut off in
severalty from the remaining undivided interests and shares, and that
accordingly she has due standing in law to maintain this proceeding to
effect such partition ; possessing such absolute right notwithstanding the
fact that the remaining interests or shares are made subject to a trust by
the provisions of the will: Reid v. Glendenning, 193 Pa. 406 (1899)." * * *
"As the decedent, William S. Dodd, whose estate is before us, died on
September 19, 1920, to wit, long after December 31, 1917, the date upon
which the Wills Act of 1917, P. L. 403, and the Intestate Act of 1917,
P. L. 429, both became operative, this estate, its administration and devolu-
tion, are therefore manifestly subject to the control of these two statutes.
We are, therefore, clearly of the opinion that the petitioner, as widow of
the decedent, upon her electing to take against her husband's will became,
under Section 23 of the said Wills Act of 1917, P. L. 403, and under
Section 2 (a) of the said Intestate Act of 1917, P. L. 429, entitled to and
invested with, an undivided one-half part, share or interest in fee simple,
in said decedent's real estate ; and that the cited portions of the said
Orphans' Court Partition Act of 1917, P. L. 337 (15, 18 and 29), do not
and are not designed to diminish such fee simple share, part or interest
so prescribed for the widow in and by the said Wills Act and Intestate
Act." Dodd's Estate, i Wash. 236.

That section of the Wills Act of 1917 which provides that a failure to
make an election within two years "shall be deemed an election to take
under the will" is of no retroactive effect, and does not apply where tes-
tator died prior to the passage of said act. This is a new provision intro-
duced by the Act of 1917, and was no part of the law until that time.

"Section 23 of the statute prescribes the form, requirements and pro-
cedure in the matter of spouses' elections to take under or against dece-
dents' wills. The employment of the word 'shall' in the opening sentence
of this section indicates futurity, to wit, that the provisions of such sec-
tion are to apply only to the estates of those who die after the said act
shall become operative, or, at least, after its passage. Annie E. Young
died on March 26, 1917, months before the time set for the Wills Act to
become operative, to wit, December 31, 1917, and months, moreover, before
the bill was enacted by the legislature or approved by the governor. Again
Section 26 of the act in express and unconditional language makes the
statute apply only to the wills of persons dying on or after December 31,
1917; providing that as to the wills of all persons dying before that day,
the existing laws should remain in full force and effect. Under the laws
of the Commonwealth which were in force at the date of the death of the
testatrix, there was no time fixed or limited during which a surviving
spouse was obliged to make his or her election, under penalty of being



WILLS ACT SECTION 23 (o), (6) 161

deemed and held to have elected to take under the will, because of neglect
or failure to make such election during such limited period. See Beck's
Estate, 265 Pa. 51 (1919). The said two-year period is applicable only to
estates of testates dying on or after December 31, 1917." Per Hughes,
P. J., in Young's Estate, I Wash. 250.

Where a testator executed a will in which he made no provision for
his wife, the latter can take against the will, notwithstanding the fact
that she was not living with her husband at the time of his death, unless
her wilful and malicious desertion has been clearly established. Schreck-
engost's Est., 77 Super. 235.

246. HOW ELECTION TO BE MANIFESTED AND
WITHIN WHAT TIME.

(&) A surviving spouse electing to take under or against the
will of the decedent shall, in all cases, manifest the election by a
writing signed by him or her, duly acknowledged before an officer
authorized by law to take the acknowledgment of deeds, and de-
livered to the executor or administrator of the estate of such de-
cedent, within twa year^ after the issuance of letters testamentary ft
or of administration. Ijeglect or refusal or failure to deliver such ^
writing within said period shall be deemed an election tojtake under ?e<^. /,
the will. . C a*^. j^^-^^i 4-\^- ~

NOTE. This is founded on Section i of the Act of April 21, 191 1, P. L.
79, 7 Purd. 7766. The two-year limitation is new, the provision that failure
to elect shall be deemed an election to take under the will being similar
to the provision in Section 35 of the Act of 1832, which is embodied in
clause (d) of this section.

It is the duty of an executor asking the widow to make her election
whether to take under her husband's will or not, to inform her of the
condition of the estate, fully and correctly.

Where a widow, the day after her husband's funeral, with the executor
of her husband's will, visited the executor's attorney, who told her, in a
language in which she was unaccustomed to converse, and under circum-
stances and surroundings unfamiliar to her, that under her husband's will
she will receive nothing of his estate but the amount of the widow's ex-
emption and explained the estimated amount she would receive if she
should take against the will, and she then expressed an intention not "to
do anything but what her husband had done," executed and acknowledged
a formal acceptance of the will, and received from the executor a payment
of twenty dollars; and subsequently in proceedings to rescind her ac-
ceptance, the court found that when she executed the election to take
under the will, she did not have such a clear conception of the estate
and her rights therein as would enable her to make a proper decision,
although no intentional deception was practiced upon her, her election
ii



1 62 WILLS ACT SECTION 23 (&)

to take under the will was cancelled, and she was permitted to elect to
take against the will. In so holding the court, per Ross, J., said, inter alia :

"The established right of a widow to take against the provisions of
the will of her deceased husband, is recognized by the Act of June 7,
1917, P. L. 403, and the 23d section of that act prescribes the method by
which she shall elect to take, either under or against the will. * *. * In
view of the fact that the Wills Act of 1917 provides a definite time (two
years) for the widow to elect and six months before she can be cited to
elect, and a further month for reflection after the citation issues, it is
evident that the legislature intended to revive and extend the time limi-
tation, which was formerly given the widow by the Act of 1832, and thus
bring its interpretation within the law illustrated by the existing decisions
of the Supreme Court (some of which we have cited) and cure the Act
of April 21, 1911, P. L. 79, by making it plain that a technical compliance
with the provisions of the 'Wills Act' would not preclude widows from
rescinding their election when made under circumstances such as the evi-
dence reveals in the case at bar." Lehman's Estate, 33 York 113, 8 Le-
high 315.

That section of the Wills Act of 1917 which provides that a failure to
make an election within two years "shall be deemed an election to take
under the will" is of no retroactive effect, and does not apply where tes-
tator died prior to the passage of said act. This is a new provision in-
troduced by the Act of 1917 and was no part of the law until that time.

"The remaindermen maintain that on account of the failure on the part
of the petitioner for a period of two years following the decedent's death,
to execute, acknowledge and deliver a formal election to take against the
will, in conformity with the requirements of the Act of April 21, 1911,
P. L. 79, he must be deemed in law, to have elected to take under the will.
The provisions of the last paragraph of clause (b) of Section 23 of the
Wills Act of 1917, P. L. 403 (which they contend in spirit and intent gov-
erns the administration and devolution of the estate before us, although
this testatrix died months before the said Wills Act of 1917, P. L. 403,
became operative), providing that 'neglect or refusal to deliver such writ-
ing within said period shall be deemed an election to take under the will.'
The provisions of this paragraph were no part of the laws of the com-
monwealth until introduced as a part of the said Wills Act of 1917, P.
L. 403; hence the said provisions can have no applicability to the estate
of this decedent, unless the same are by the statute made or intended to be,
retroactive. Nowhere in this statute do we find anything to indicate that
such provision thereof is intended to be retroactive ; but on the other
hand the act, in plain language, shows that it is not to be deemed retro-
active. Section 23 of the statute prescribes the form, requirements and
procedure in the matter of spouses' elections to take under or against de-
cedents' wills. The employment of the word 'shall' in the opening sen-
tence of this section indicates futurity, to wit, that the provisions of such
section are to apply only to the estates of those who die after the said
act shall become operative, or, at least, after its passage. Annie E. Young
died on March 26, 1917, months before the time set for the Wills Act to
become operative, to wit, December 31, 1917, and months, moreover, be-
fore the bill was enacted by the legislature or approved by the governor.



WILLS ACT SECTION 23 (&) 163

Again Section 26 of the act in express and unconditional language makes
the statute apply only to the wills of persons dying on or after December
31, 1917, providing that as to the wills of all persons dying before that
day, the existing laws should remain in full force and effect. Under the
laws of the commonwealth which were in force at the date of the death
of the testatrix, there was no time fixed or limited during which a sur-
viving spouse was obliged to make his or her election, under penalty of
being deemed and held to have elected to take under the will, because of
neglect or failure to make such election during such limited period. See
Beck's Estate, 265 Pa. 51 (1919). The said two-year period is applicable
only to estates of testates dying on or after December 31, 1917." Per
Hughes, P. J., in Young's Est., I Wash. 250.

A surviving spouse must file an election to take against the will of the
deceased spouse within two years of the issuance of letters testamentary
or of administration, as required by Section 23 (6) of the Wills Act of
June 7, 1917, P. L. 403, 4.

A widow, living apart from her husband, although in Philadelphia,
where he resided, was notified of his death by his executor immediately
after it occurred; the grant of letters was duly advertised; the petition
for probate of the will correctly stated the testator's real and personal



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 17 of 71)