Malcolm Campbell, Norristown, for appellant.
Francis P. O'Hara, Norristown, for appellees, Jean Clemens and William F. Fox, Executors of Est. of Roy H. Rittenhouse.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
This appeal presents the issue of whether the surviving spouse's share of her deceased husband's estate is liable for the payment of administration expenses when she elects to take against the will pursuant to the Wills Act of April 24, 1947, P.L. 89, § 8, as amended, 20 P.S. § 180.8, now 20 Pa.C.S.A. § 2508.
The testator, Roy H. Rittenhouse, died in August of 1970. When his will was offered for probate, appellant Emma H. Rittenhouse chose to take against the will under § 2508. Section 2508(b) states:
"The surviving spouse, upon an election to take against the will, shall be entitled to one-third of the real and personal estate of the testator . . . ."
The Court of Common Pleas, Orphans' Court Division, of Montgomery County, in an opinion by Judge Taxis, ruled that appellant was entitled to one-third of the testator's estate, after the deduction of a pro-rata share of the administration expenses.
Appellant contends that she should receive one-third of the testator's estate, and that all of the administrative expenses should be paid from the remaining two-thirds of the estate. Her contention is based on the language of § 2508(b). Section 2508(b) differs from its predecessor, the Wills Act of June 7, 1917, P.L. 403, § 23(a) (hereafter cited as the Wills Act of 1917). The Wills Act of 1917 stated that the
"surviving spouse shall be entitled to such interests in the real and personal estate of the deceased spouse as he or she would have been entitled to had the testator died intestate . . . ."
The Intestate Act of June 7, 1917, P.L. 429, § 1, now 20 Pa.C.S.A. § 2101, provided that "[t]he real and personal estate of a decedent, . . . subject to payment of debts and charges," was to be distributed as later described by the Act if it was not disposed of by will or otherwise. Consequently, it was clear that the "payment of debts and charges" was to take place before any distributive shares were determined. Section 2508(b) of the Wills Act of 1947, however, contains no reference to the Intestate Act of 1917. Appellant contends that the legislature's change of the ...