Appeal, No. 98, Jan. T., 1950, from order of Orphans' Court of Crawford County, Feb. T., 1949, No. 48, in Estate of Mary Mosbacher Martin, Deceased. Order reversed; reargument refused August 16, 1950.
Gerald D. Prather, for appellant.
F. Joseph Thomas, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE BELL
Mary Martin died testate, leaving a surviving husband but no issue. The Record does not contain a copy of her home drawn will but the will did not contain a residuary clause. The husband elected to take against the will and thereafter claimed that he was entitled, under the Intestate Laws, to $10,000 and one-half (1/2) of the balance of the estate of which his wife died intestate. In pursuance of his said right, the husband petitioned to have his allowance of $10,000 set aside to him out of certain real estate of which the decedent died intestate.
These facts raise a narrow but close question: Does the Wills Act of April 24, 1947, P.L. 89, 20 P.S. § 180.1 et seq., or the Intestate Act of April 24, 1947, P.L. 80, 20 P.S. § 1.1 et seq., govern?
Section 8 of the Wills Act of 1947 provides as follows: "(a) Right of Election. When a married person dies testate as to any part of his estate, the surviving spouse while living shall have a right of election under
the limitations and conditions hereinafter stated. (b) Share of Estate. The surviving spouse, upon an election to take against the will, shall be entitled... to one-half of the real and personal estate of the testator."*fn*
This language is clear and specifically covers the instant case where the married woman died testate as to part of her estate and the surviving spouse elected to take against the will. At first blush it would therefore seem to clearly and specifically apply to and rule the instant case. However, Sections 1 and 2 of the Intestate Act of 1947 provide: Sec. 1 "The real and personal estate of a decedent, whether male or female, subject to payment of debts and charges, and not disposed of by will or otherwise, shall descend as hereinafter provided." Sec. 2 "The surviving spouse shall be entitled to the following share or shares: ... (3) No Issue. The first ten thousand dollars in value and one-half of the balance of the estate, if the decedent is survived by no issue...."
The surviving husband claims that the real estate of his deceased wife which was not disposed of by will shall descend in such manner that he is entitled to the first $10,000 in value and one-half of the balance of the estate not disposed of by his wife's will. The husband contends that the Wills Act governs only property disposed of by will and that therefore all property of which the decedent died intestate must descend under the Intestate Act. The vice of this argument which, at first blush, is persuasive, is that the husband is claiming by virtue of an election to take against the will. The 1947 Intestate Act does not contain a provision covering such an election, but that situation is clearly and specifically ...