Appeals, Nos. 13 and 38, Jan. T., 1954, from order of Orphans' Court of Lackawanna County, 1950, No. 989, in Estate of John Stachnick, deceased. Appeal No. 38 sustained and decree reversed; appeal No. 13 dismissed and decree affirmed.
S. U. Colbassani and Ernest J. Gazda, for executor.
Walter W. Kaczmarek and Sidney Grabowski, for widow.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The two appeals relate to decrees of the Orphans' Court of Lackawanna County. One appeal is by the executor (a co-devisee and co-legatee) from a decree allowing a family exemption of $750 to the surviving widow, under the Fiduciaries Act of April 18, 1949,
P.L. 512, art. II, sec. 211, 20 PS 320.211, out of specifically devised real estate. The other appeal is by the widow from decrees ordering her to surrender to the executor possession of the real estate awarded to her as the "family exemption". The surrender was decreed in order to permit the executor to operate a beer garden business on the premises pending the outcome of this litigation. John Stachnick, the testator, died October 24, 1950. His will was probated October 30, 1950. He left surviving his widow, Kathryn Stachnick, but no issue. By the will testator made various devises and bequests which need not be recited as they are not involved in this litigation. Testator by the fifth item of his will devised premises 317 Vine Street, in the Borough of Old Forge, together with the beer garden thereon and its furniture and fixtures, to Walter Ferrett and Roman Ferrett. He charged this devise and bequest with the payment of specific sums of money to various named individuals. Walter Ferrett was appointed sole executor to whom letters testamentary were granted.
According to unchallenged allegations in the pleadings, on January 3, 1951, the widow elected to take against the will.
On January 6, 1953, the widow claimed $750 as the "family exemption" under the Act of 1949, supra, out of premises 317 Vine Street which had been specifically devised as above recited. Appraisers appraised the premises at $3,500. By decree of March 9, 1953, the court awarded the premises to the widow in settlement of the statutory family exemption, subject to the payment by her of $2,750 -- the difference between the amount of the appraisement of $3,500 and the $750 allowance. The decree also provided with respect to the payment of $2,750 that: "... one-half thereof [be paid] unto [the widow] and the other one-half thereof unto [the executor] for the benefit of the heirs and
supra, provides that the spouse may retain and claim as such family exemption "real or personal property". Under the Act of April 18, 1949, P.L. 512, art. II, sec. 213 (b), 20 PS 320.213 (b), where such real estate is valued at more than the amount claimed and the court confirms the amount of the appraisement "... the [claimant]... shall pay the amount of the valuation in excess of the amount claimed..." There is nothing in the Act which limits the choice of the spouse. Real estate may be selected without exhausting the personal property. Real or personal property specifically devised or ...