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JOSEPHINE T. BIALCZAK v. NELLIE MONIAK AND STELLA MILLER (04/25/88)

filed: April 25, 1988.

JOSEPHINE T. BIALCZAK, APPELLANT,
v.
NELLIE MONIAK AND STELLA MILLER, APPELLEES



Appeal from the Order entered July 9, 1987 in the Court of Common Pleas of Warren County, Civil Division, at No. 275 of 1984.

COUNSEL

Marsha Meadows, Chanders Valley, for appellant.

William F. Morgan, Assistant District Attorney, for appellees.

Brosky, Wieand and Del Sole, JJ.

Author: Del Sole

[ 373 Pa. Super. Page 253]

This is an appeal from the trial court Order granting Appellees' motion to dismiss Appellant's action in partition.

The facts are as follows. The record shows that in 1966 Appellant's husband (Decedent) conveyed real property to himself and his daughter, Nellie Moniak, as joint tenants with rights of survivorship. Appellant did not join in, or consent to, this conveyance. Later, on December 7, 1978, Ms. Moniak conveyed her rights to the same property back to the Decedent. Finally, one day later, Decedent conveyed the real property to Ms. Moniak and her sister, Stella Miller, as joint tenants with rights of survivorship.*fn1 Decedent, however, retained a life estate in the use and occupation of a house situated on the property.

Decedent died on May 12, 1984. Thereafter, on June 1, 1984, Appellant filed a partition action against Decedent's two daughters (Appellees) in order to recover her interest in the property which Decedent had conveyed without her joinder or consent. Appellees filed a preliminary objection in the nature of a demurrer which was denied by the trial court. Subsequently, Appellees filed a motion to dismiss on grounds that Appellant's suit was, in reality, an untimely attempt to exercise her spousal right of election pursuant to 20 Pa.C.S.A. § 2203 of the Probate, Estate and Fiduciary

[ 373 Pa. Super. Page 254]

Code. See 20 Pa.C.S.A. § 2210 (election must be filed with the clerk of the orphans' court division before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later). The trial court granted Appellees' motion and dismissed the case. This timely appeal follows.

Appellant raises four issues in this appeal:

1. Where a widow is the sole beneficiary under her decedent husband's will, the widow's dower claim to property transferred without her consent cannot be limited by 20 Pa.C.S.A. section 2105(a) as she has no need to seek relief under that title or to trade her dower rights at common law for a share of the estate;

2. Where a widow need not give up dower rights in order to receive a share of the estate, the dower right remains with the widow; and a denial of that right is in violation of the due process clause, as a property right has been taken away from the ...


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