Appeal, No. 123, March T., 1953, from decree of Orphans' Court of Allegheny County, 1952, No. 4588, in Estate of John F. Biddle, Jr., Deceased. Decree affirmed.
Joseph A. Langfitt, Jr., with him Arthur Wessel, Jr., for appellant.
Charles W. Herald, with him Hirsch & Weise, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Where a widow, a life tenant under her husband's will, elects to take thereunder, and legacies to charities fail causing a partial intestacy, is the widow's estate, upon her decease, entitled to participate in such intestate portion? The court below decided that the widow's estate so shared. This appeal followed.
John Biddle, the testator, died January 17, 1926, ten days after the execution of his will dated January 7, 1926. He left surviving as his next of kin his widow, Margaret J. Biddle, and his father and mother. His
residuary estate was placed in trust to pay the net income to his widow for life, under spendthrift provisions, and thereafter to apply the corpus for charitable uses, which charitable uses were void because made within thirty days before testator's death (Wills Act of June 7, 1917, P.L. 403, Sec. 6, 20 PS 195). The widow filed a formal election to take under the will, but wherein she stated that it was: "... without prejudice, however, to any estate, right, title or interest in his estate, or any part thereof that may have heretofore vested in or accrued to me, or that may hereafter vest in or accrue to me or my estate, heirs, executors, administrators or assigns, by reason of some of the provisions of the will of my said husband being void and of no effect." Upon the death of the widow and consequent termination of the life estate, the surviving trustee filed its account. At the audit the executrix of the widow's estate (appellee) claimed an intestate share of such residue, which under the Intestate Act of June 7, 1917, P.L. 429, Sec. 2 (a), 20 PS 11, was $5,000 and one-half the balance. The other half portion of the residue vested in the father and mother of the testator as tenants by the entireties. On the death of the father such share vested in the mother who bequeathed it to A. S. Lawson, Jr., the appellant.
Appellant contends that when the widow elected to take under the terms of her husband's will, which was a life estate in the entire estate, she knew, or should have known, that the charitable bequests were void and therefore elected to take but a life estate in the whole estate, relinquishing and surrendering the intestate portion of the estate caused by the invalidity of the gifts to charity. Such contention, however, overlooks the reservation contained in the election to the effect that her election to take under the will was without prejudice to her rights in such intestate
portion of the estate. But we need not consider the effect of such qualified election. The widow received a life estate subject to a spendthrift provision in the equitable or trust estate of testator. This is what she accepted by her election under the terms of the will. But the portion of the equitable trust estate in remainder was invalidity bequeathed and was not otherwise disposed of, resulting in an intestacy: Hartman's Estate (No. 1), 320 Pa. 321, 182 A. 234; ...