Appeals, Nos. 238 and 248, March T., 1962, from decree of Orphans' Court of Allegheny County, No. 1256 of 1961, in re estate of John Peden, deceased. Decree affirmed; reargument refused December 5, 1962.
Morris A. Mendlowitz, for administrators.
Robert W. McWhinney, with him Goehring and McWhinney, for executor and trustee of decedent's widow.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
John Peden died March 6, 1961; letters testamentary on his will were issued to Pittsburgh National Bank.
Peden's will, which he executed on October 31, 1957, provided, inter alia, as follows:
"Second: I specifically devise to my Trustee hereinafter named the following particular pieces or parcels of real estate which I hold as tenant by the entireties with my wife, BELLA PEDEN, with the intent and purpose of putting my said wife, BELLA PEDEN, or her guardian as the case may be, to her election*fn1 of accepting her share under this my Last Will and Testament, or declining the benefits to her under this my Last Will and Testament and accepting only her intestate share, it being my belief that her interests will be better served by receiving all of my estate as the corpus of a Trust for her benefit than it would be to receive a fee in a portion of my estate, under circumstances existing as of the date of this Will:
"(A) My residence at 4031 Davis Avenue erected on Lots 4019 and 4020 in the Homestead Park Plan, Borough of Munhall, Allegheny County, Pennsylvania.
"(B) The premises at 109 West Virginia Avenue, Munhall, Pennsylvania, erected on Lots 1945, 1946 and 1947 in the Plan, Borough County and State aforesaid."
Testator then gave in the fourth paragraph of his will his residuary estate in trust "to distribute all of the income, and so much of the principal as may in its discretion be needful, for the proper and comfortable maintenance, care and welfare of my beloved wife, Bella Peden ... for her natural life assuring, insofar as is possible, adequate medical and other care ... without regard to preservation or principal ..." with a gift at his wife's death of the income and the principal to
his nephew, John Sterling Peden who, the testator stated, had "been reared by my beloved wife, Bella Peden, and me as though he were our son."
The testator's wife, Bella Peden, had become mentally incompetent in April, 1956, but was not so adjudicated until May 28, 1961, at which time Peoples Union Bank and Trust Company was appointed guardian of her estate. On June 21, 1961, without authority of the Orphans' Court, the guardian elected, by a letter to the executor, to take against the will. Bella Peden died July 16, 1961. After her death, the guardian of her estate filed the election to take against Peden's ...