hours of the grant of letters on the de- ing to survive her a husband to whom cedent's estate, it was impracticable, if administration of her estate was granted. not impossible, for her to make her selec- Her administrator sought to recover her tion of articles to be retained; that the $300 exemption in the settlement of her law does not require the performance of first husband's estate, although in her impossibilities; that she was guilty of no lifetime she had never made a claim laches and that therefore her personal therefor nor demanded an appraisement. representative succeeds to the right of The claim of the administrator was dis which she and her estate was deprived by her sudden and unexpected demise. The only authority cited by Mr. Wanner was Peterman's Appeal, 76 Pa. 116, in which one Lewis Peterman made an assignment of all his property for the benefit of creditors, "except however so much as may be exempt by the laws of this Commonwealth from levy and sale, on execution and distress for rent, to be selected by the said Lewis, and appraised for the use of himself and family according to law." Under this exception property to the amount of $99.88 was appraised to Peterman, who subsequently claimed the balance of the $300 exemption out of the proceeds of the sale of certain real estate sold after proceedings in partition in the settlement of the estate of his mother who had died intestate prior to the execution of his deed of assignment. Your Auditor fails to appreciate the pertinency of the citation, as the claim was not made by Peterman's personal representative and has no bearing upon the question of survivorship in the right of exemption, which is the only question in the present controversy. "The purpose of the Act of 1851 is to make an immediate provision for the wants of the family when the head of it is removed by the death of the husband allowed and on appeal the Supreme Court said: "We see no error in disallowing the claim for three hundred dollars. This sum is given to the widow, if she claims it at a proper time. The law does not force it upon her. It is a right which she may waive. In this case she She lived more than never claimed it. six years after the death of her husband. The right then died with her, and her executor cannot now demand it." As in Crozier's Appeal, 90 Pa. 384, it was held that the right of a widow to elect not to take under her husband's will is personal to her, is not given to her heir or administrator, so, by a parity of reasoning, it would seem that the right to the $300 exemption, where there are no minor children, is a purely personal priv ilege granted to the widow, devoid of inheritable qualities, and dies with her. In Lafferty's Estate, 12 W. N. C. p. 535, an opinion was filed which confirms this position. In that case Judge Hanna sustains a claim for the exemption, although the widow died after its presentation to Court but three days prior to its confirmation; but, says the Court, "if the claim had never been made by the widow, but was presented by her executor, the case would be far different, and clearly could not be allowed. It is a personal privilege, and, if not claimed, is pre sumed to be waived." the demand of the administrator of the estate of Margaret Beck, deceased, for the $300 exemption is accordingly re or father"; Hettrick vs. Hettrick, 55 Pa. 292. "By this act the Legislature intendUpon both reason and authority, thereed nothing more than a temporary pro-fore, your Auditor is constrained to disvision for the widow and those immedi- allow the claim for the exemption and ately dependent upon the deceased. It was not designed as a statute of distribution"; Scott on the Intestate Law, P. 335. "The right of a widow to retain real or personal property of her deceased husband's estate to the value of $300 is a personal privilege, no less than is that of a debtor to retain against an execution creditor"; Davis Appeal, 34 Pa. 257. fused. the Administrator of Margaret Beck. N. M. Wanner for exceptions. Cochran & Williams for estate. December 15th, 1893. BITTENger, J. In France's Estate, 75 Pa. 221, the -The exceptions are to the refusal of the testator's widow married and died intes- Auditor to allow the claim of Alexander tate and without issue nearly seven years Beck, Administrator of the estate of after the death of her first husband, leav-Margaret A. Beck, deceased, who was the widow of the decedent, Emanuel Beck, for the $300, now claimed, which was for the $300 claimed under the widow's refused; that Emanuel Beck died posexemption acts of 1851, Purdon 518, and sessed of personal estate appraised at 1859, ibid, page 519. $1841.18, as shown by the inventory and appraisement thereof filed February 12th, 1892, in the office of Register of Wills, which appraisement for all legal purposes shall be treated as in evidence, and that all the children of Margaret Beck and all the heirs and legatees of Emanuel Beck were of full age, at the time of his death on January 13th, 1892. The act of 1851 provides that the widow and children of any decedent dying within this Commonwealth, testate or intestate, may retain either real or personal property belonging to said estate, to the value of three hundred dollars, and the same shall not be sold, but shall be suffered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such de-sel for the exceptant, either before the cedent to have the said property apprais- auditor or at the argument of the exceped in the same manner as is provided in tions in Court, to sustain the exceptions the act passed the 9th day of April, in the year 1849, entitled "an act to exempt property to the value of three hundred dollars from the levy and sale on execution and distress for rent." No case was cited by the learned coun and the claim of the exceptant. We have been unable to find any decision of the Supreme Court upon any claim by the personal representative of a deceased widow who died as Margaret A. Beck The act of 1859 gives the widow and did before a demand for the exemption children (of any decedent) entitled to ex- allowed her by law and before a selecemption, the right to elect to retain the tion and setting apart of the same for same or any part thereof, out of any bank her, in personal or real estate, by the pronotes, money, stocks, judgments or other per appraisers. Neither have we found indebtedness to such person; and directs any decision of this particular question that in all cases thereafter the appraisers by any of the Common Pleas Courts of of the other estate shall appraise and set this Commonwealth. apart to the widow and children of any decedent, such estate as shall be required to be appraised and set apart to them. In Daggett's Estate, 7 C. C. R. 338, in the Common Pleas of Erie County, it is held that where the widow of a deThe following facts were agreed upon cedent elects to take real estate to the before the Auditor, and by him incorpor- value of $300, under the Act of 1851, ated in his report: "That Emanuel Beck, and the appraisers set aside real estate the decedent, died on January 13, 1892, for her under said election, title thereto leaving a widow, Margaret Beck; that passes to the widow, even though she die his will was admitted to probate on the prior to the confirmation of the appraiseafternoon of January 20, 1892, when let-ment, by the Court. opinion, that if the claim had never been made by the widow, but was made by her Executor the case would be far different, and clearly could not be allowed. ters testamentary were granted to Augus- Lafferty's Estate, 12 W. N. 535 cited tus Free, the executor named therein; by the auditor, decides that where propthat Margaret Beck, testator's widow, erty has been appraised to a widow, and died about midnight on said 20 January, she dies three days prior to the confir1892, before any appraisers had been mation, the property was vested in the selected by the Executor, and without widow in her life time, and passes to her having made any demand upon the ex- Executor. But Judge Hanna says in his ecutor for the $300 widow's exemption allowed her by law, and without having designated what property, if any, of her deceased husband's she intended to take; the said Margaret Beck left to survive her two children, Alexander M. Beck the claimant, who is the administrator of his mother's estate, and Mrs. Armpriester; that Alexander M. Beck after having taken out letters of administration on his mother's estate, made demand upon the executor of the will of Emanuel Beck These decisions are based upon the conclusion that the right of the widow to the real or personal estate appraised to her is vested upon its selection and appraisement and the setting apart of the same to her in pursuance of the election made by her. In the case under consideration there Zork Legal Record. Vol. VII. THURSRAY, JAN. 11, 1894. No. 31. money out of her deceased husband's estate, may, upon learning that there is no cash, ask for the amount out of the proceeds of real estate; McCan's Estate, 48 was no demand, election, or appraise- L. I. 57; Buddy's Estate, 7 C. C. R. 466. ment in the life time of the widow, for While a widow, having claimed her exthe reason that she died on the night of emption in cash, may, upon learning that the day upon which letters testamentary were granted. There was, and could be no action by her to vest in her any title to any of the estate of her deceased husband, as exempt goods, moneys, or property. there are no moneys belonging to her husband's estate, amend her claim, if done without delay, so as to receive her statutory exemption, her legal representative has not that power. He must take what she has selected; Finney's App; "Election" is defined by Abbot; Law 113 Pa. 11. In the case last cited the Dictionary, page 418, "choosing, select- widow claimed money. No appraisement ing." The widow has the power of was made and as we have seen, none was choosing or selecting such property, real necessary. A short time after making or personal, including moneys and choses her claim the widow died. Her claim in action, or a portion of each, as she shall elect to choose and have appraised to her and set apart for her use. was for cash; $109.24 was all the cash then belonging to the estate, and to that extent only was the claim of her personal representative allowed, in the distribution of her husband's estate. This decision is strongly confirmatory of the law herein expressed. "When nothing passes to a feoffee or grantee before election (as a devise to one of such property as he may select), to have one thing or the other, there the election ought to be made in the life time The acts under which the claim is of the parties; and the heir or executor made require an election by the widow, cannot make the election, Co. Lit. 145 a; to retain her exemption, and the proper2 Co. 37 a. When election creates the ty chosen by her is required to be apinterest nothing passes until election"; 3 praised to her and her children, by the Bacon's Abridgement 310; Williams on appraisers of the other personal estate. Executors, page 945; 7 Am. Enc. of Law, page 301. The $300 exemption is a grant to the widow of a decedent of this Commonwealth, by operation of law, upon election by such widow, and the rule here laid down is fully applicable to such claim to exemption. The right of a widow to retain real and personal property of her deceased husband's estate to the value of $300, is a personal privilege, no less than that of a debtor to retain against an execution creditor; Davis Ap., 34 Pa. 256. "An appraisement confirmed by the Court is the foundation of the widow's right, it forms the very title of her property"; Sellers Estate, 82 Pa. 153. When money as such, or moneys out of any security are elected to be retained, appraisement is not necessary; Larrison's Ap., 36 Pa. 130; Baldy's Ap., 40 Pa. 329; Peterman's Ap., 76 Pa. 116. In such case a claim by the widow is the exercise of the power of election, and her right is vested even though she die before receiving the money. "A widow having elected to retain We are of opinion that the personal right of election belonging to the widow, Margaret A. Beck, died with her and did not survive to her administrator. The ruling and distribution made by the auditor are, therefore correct, and must be sustained. The exceptions to the report of the learned auditor are dismissed, and the report is confirmed. Evidence that a wife slapped her husband in the face and a few days afterwards, while he was down, kicked him on the head and face three times, but inflicting no serious injury; which were anonymous; that she did not occupy the same room with him: that she entered up a judgment note against him for the purpose of ruining his business; that she made extravagant purchases on his credit knowing him to be in embarrassed circumstances, and that she alienated the affection of his children from him is not sufficient to establish the charge of that she wrote him abusive letters, some of to get Charley," their son, "a place, why not come home, and let us live as we should as man and wife," and offers to rent rooms or a small house for their ac cruel and barbarous treatment within the the house of Mr. Roberts she went to meaning of the divorce acts. board with Mrs. Heller, where she reSCHUYLER, P. J.-This is a proceed-mained two months. While there C. W. ing for a divorce based on two charges: Meeker, at the request of the plaintiff, first, desertion, and second, cruel and called to see her with a view to reconbarbarous treatment. The defendant ciliation between the parties, but to all having put in an answer denying both of his overtures she thoughtfully shook her these charges, at her request an issue head in the negative. From Mrs. Helwas framed to try their truth or falsity ler's she went to Philadelphia where she before a jury. Upon the trial of this is- remained until the following December, sue, at the close of the plaintiff's evi- when she returned to Easton, and here dence, a compulsory nonsuit was en-she has lived ever since with her mother. tered, which we are now asked to set While she was yet in Philadelphia, to aside. It is a familiar law that in test- wit: on Aug. 11, 1891, the plaintiff wrote ing the correctness of a judgment of her a letter in endearing terms, of which compulsory nonsuit the plaintiff's evi- he kept a copy, and in which he says, dence must be accepted as true, and every "now, dear Carrie, as the object of your reasonable inference of fact which a jury going to the city is accomplished, that is might draw from it in the plaintiff's favor must be drawn by the court. It is equally familiar law, that if on the whole of the plaintiff's evidence the jury would not be justified in finding a verdict commodation. against the defendant, it is the duty of Three days after the date of this letthe court to order a nonsuit. ter the defendant replied to it saying, "it Guided by these principles and taking is best for me to remain here in this city up the charges in order, let us inquire one year at least. It is best for you that first, whether the evidence offered by I do remain here quietly for one year at the plaintiff would have justified the jury least." After hinting darkly at some in finding a verdict against the defend- great grievance, and that the plaintiff's ant on the charge of desertion. It must offer may not have been made in good be borne in mind as we go along that the faith, she adds: "It would show wisdom only desertion the law recognizes as a on your part to permit matters to quietly ground of divorce is "wilful and mali- rest for this length of time. If you concious desertion" persisted in for a period clude to accede to my request, let me of two years. Now, accepting the plain- know." I cannot recall any evidence tiff's evidence as true and drawing every that the plaintiff ever replied to this letreasonable inference from it that a jury ter, or that he ever afterwards made any might draw, the facts will be found sub- effort to induce his wife to return. But stantially as follows: On March 5th, the most damaging feature in the plain1891, while the plaintiff and defendant tiff's case, that is the most damaging to were domiciled at the boarding house of its success, is the fact, that during the George H. Roberts, in this city, a quarrel, entire period of his wife's separation accompanied by violence, sprung up be- from him, he made weekly remittance to tween them which so disturbed the peace her for her support. Under the authority and quiet of the establishment that Mr. of Ralston's Appeal, 93 Pa. 133, we think Roberts peremptorily ordered both par- this is fatal to the charge of desertion. ties to leave his house. The plaintiff, In that case the husband requested his however, remained, but the defendant left. The plaintiff did not intercede for her, he did not object to her going, he did not follow her, but allowed her to seek other quarters as best she might. And this is the "wilful and malicious desertion" of which he complains. Nor is the evidence to establish a persistence in the alleged desertion much, if any stronger. When the defendant left The wife to return, offering "to take a house tablish that wilful and malicious deser- opposite sex may excite jealousy in the tion and absence contemplated by the act mind of the other, from the long conof assembly.' We think therefore that tinued effect of which the injured party under no just view of the evidence could the jury have found the defendant guilty of desertion. We come next to consider the charge of "cruel and barbarous treatment." The courts have not yet attained to a satisfactory definition of this term. The word "barbarous" as here used has not been considered as possessing any special significance. Perhaps its only use is to distinguish the ill treatment that will justify a divorce from what may be called mere sentimental ill treatment peculiar to civilized society, which is so often the result of that inevitable reaction from the high excitement and extravagant dreams of an earthly paradise, that usually precede the married state. Be this as it may the question that has bothered the courts is not what is barbarous treatinent, but what constitutes "cruel" treatment within the meaning of the divorce acts. All the authorities agree that to constitute this offence there must be "actual personal violence, or the reasonable apprehension of it, or such a course of treatment as endangers life or health, or render cohabitation unsafe." The difficulty with this definition is the application of it. It is not every act of personal violence that is ground for a divorce, as is well illustrated in the case of Richards V. Richards, 37 Pa. 225, where the husband twisted and pulled his wife's nose “in a coarse, vulgar and harsh manner," and the wife was cast in proceedings for a divorce instituted on that ground. Nor is every course of treatment that endangers health or life a ground of di vorce. This matrimonial discord produced by mere acerbity of temper, however long continued and however trying to the health is not enough; Butler v. Butler, 1 Pars. 345. "In such cases," to borrow the language of Judge King in the case just cited, "courts have most wisely refused to interfere, referring the parties to their domestic forums for the adjustment of their differences, and recommending to the aggressor the improvement of his manners and to the aggrieved the remedies of decent resistance or prudent conciliation." So either party by too great intimacy with persons of the might languish, and languishing die, and while in the opinion of all well ordered persons such conduct is in the highest degree reprehensible, yet no one has ever supposed, so long as it stopped short of positive immorality, that it furnished a ground for divorce. Numerous other instances might be given. Thus mere declaration unaccompanied by acts, refusal to Occupy the same room, and attempts by one to get the other's property are not enough; Eschbach v. Eschbach, 23 Pa. 343; nor are obstinate silence, laziness and wilful neglect of household duties enough; Harris' Appeal, 2 W. N. 331; nor grossly immoral conduct on the part of the wife rendering it impossible to bring up the children of the family properly, Miles v. Miles, 76 Pa. 358; nor indignities to the person of the husband; Powers' Appeal, 120 Pa. 320; nor words of reproach or false imputation; Jones v. Jones, 66 Pa. 496; nor threats that do not alarm, opof the children of the marriage when very probious epithets, and neglect by the wife sick; Hahn v. Bealor, 132 Pa. 242. That the reasons for holding the law so strictly are well founded will appear from the following citations: "Never ought divorces to be easily obtained," says Lowrie, C. J., in Richards v. Richards, supra, "for marriage is the most sacred of hu man relations, and should never be dis solved without clear proof of imperious and their children, and to the public when reasons. We may do wrong to the parties we aid one party in severing the relation without a clear necessity." But by far the most complete summary of the whole subject will be found in the opinion of Judge King in the celebrated case of Butler v. Butler, above cited, where he uses the following language: "That the general moral order is best promoted by discountenancing matrimonial separations, unless by weighty and substantial causes, is undisputed and indisputable; at the same time the public weal is thus best served; the true interest of the immediate parties, the happiness and respectability of their offspring, the feelings of those united to them by the ties of kindred and affection, are most effectually advanced and protected. Controversies |