Appeal, No. 136, Jan. T., 1952, from decree of Orphans' Court of Lehigh County, No. 40123, in Estate of William T. Houston, also known as Will T. Houston, Deceased. Decree affirmed.
Wilson A. Wert, him Snyder, Wert & Wilcox, for appellant.
Harold A. Butz, with him Butz, Steckel, Hudders & Rupp, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
William T. Houston died testate on September 20, 1949. By his will be provided that should his widow elect to take against his will, his two sons were to receive nothing. His widow did so elect and his sons filed exceptions to the proposed schedule of distribution
alleging that the above clause was against public policy and void. The Orphans' Court of Lehigh County dismissed the exceptions and confirmed the account. One son, William T. Houston, Jr., has appealed.
Testator's will was dated February 2, 1935*fn1 In it, he provided that after the payment of debts his entire estate, now totaling $120,036.38, should be left in trust with directions to pay to his widow the sum of $150.00 per month for life. Upon her death the two sons were to receive $50.00 a month each for life. The remainder was to go to the children of the sons when they attained the age of twenty-one. Paragraph 14 of the will, which gives rise to this dispute, provides: "Should my wife, Anna Houston, elect to take against this, my last will and testament, I do hereby revoke and make void any provision or provisions for either or both of my sons..." Then followed an alternative gift of the income to testator's sister during her life and her children during their lives.
When the widow elected to take against the will, the executor filed his account and proposed schedule of distribution in accordance with the provisions of Paragraph 14 and that account was confirmed by the learned court below. Appellant's principal argument is that Paragraph 14 places the widow in a position where she must either take the relatively small bequest given her by the will or by electing to take against the will effect the disinheritance of her children. It is his contention that to put the widow to such a choice is against public policy and the clause is therefore void.
It has long been the law of this Commonwealth that a testator may make provisions to take effect should his widow elect to ...