Greenawalt's Estate , 16 Pa. Super. 263 ( 1901 )

Opinion by

Rice, P. J.,

The statutory allowance to a widow, commonly spoken of as widow’s exemption, elected by her to be taken in real estate, becomes, after the confirmation of the report of the appraisers that the land cannot be divided without injury, a charge upon it, and the orphans’ court has power to enforce payment of the charge by a decree that it be made out of the lands by sale : Detweiler’s Appeal, 44 Pa. 243. If it appears on the face of the proceedings that the decedent neither died within this commonwealth nor had a domicil therein, it may be conceded that the decree confirming the appraisement would be void for want of jurisdiction, and that this objection might be raised on the hearing of the application for the order of sale. But where the decree of confirmation was made by the orphans’ court of the county in which the letters of administration were issued, want of jurisdiction is not to be presumed from the mere omission to set forth in the claim or in the appraisement that the decedent died, or was domiciled at the time of his death, within the commonwealth. Whether or not upon the hearing of a petition for an order of sale to enforce the decree, the prior proceedings being regular on their face, an heir may attack the decree and demand a reinvestigation of the question of the domicil of the decedent at the time of his death, is the question presented on this appeal. It is true, the appellant alleges in her answer that she had no actual notice of the appraisement, but the petitioner alleges in her replication that she was actually present when it was made. As no testimony was taken to support the allegation of want of notice, we assume that it may be disregarded in the present inquiry. We assume, also, that the appellant has done nothing to estop herself from raising the question now presented. Therefore, as we view the case,- it turns upon the conclusiveness in a collateral proceeding of the decree confirming the appraisement. In the case heretofore cited, Detweiler’s Appeal, Mr, Justice Stkong, after pointing out that if personal property or land be appraised ánd set apart to the widow, and the appraisement be approved by the orphans’ court, her ownership becomes complete, said of the confirmation of such an appraisement as this: “ If, as in the case before us, where everything that the statute requires to assert the widow’s right has been done, neither personal property nor land has been set off to her, to the extent of her right, creditors and heirs must stand aside until she has been satisfied. When the orphans’ court confirmed the report of the appraisers, certifying that the land of the decedent could not be divided so as to assign to the widow such a part as was equal to $118.79, they, in effect, decreed that such sum remained a charge upon the whole real estate. It was a charge created by the act of assembly and declared by the court. As it was a sum of money to be paid out of the lands, in the strictest sense a charge, it must follow the lands into whomsoever hands they may come, for a purchaser from the heir has notice of every statutory charge.” In Runyan’s Appeal, 27 Pa. 121, a creditor excepted to the account of an administrator upon the ground that he had not charged himself with the whole amount of the estate, but had permitted the widow to retain $800 worth of property to which she was not entitled as against him. The court below sustained the exceptions and charged the debt of the exceptant against the administrator. This was held to he error. Mr. Justice Black, delivering the opinion of the Supreme Court, said: “We think the confirmation of the appraisement was an adjudication of the property mentioned in the inventory to the widow. It was conclusive against the creditor, for it was a judgment in rem which determined forever the status of a thing, and was binding on all the world.” The same doctrine was enunciated in Kauffman’s Appeal, 112 Pa. 645, at page 650, and has been recognized in many other cases, both in the Supreme Court and in the orphans’ courts of the commonwealth. There are many cases in which the widow is not entitled to the allowance. These exceptions established by the decisions upon a construction of the statute, are as much a part of the law, as if they had been expressly mentioned in the statute. The court having jurisdiction of the decedent’s estate and of the accounts of his executor or administrator, must necessarily have power to adjudicate the questions of fact arising upon the widow’s claim, and to refuse approval of the appraisement if the evidence shows that she is not entitled to tbe allowance. We are not convinced that it had not jurisdiction to adjudicate the question of fact raised in this case. The case of Shoenberger’s Estate, 139 Pa. 132, bears a strong analogy to the case at bar, and is especially pertinent in view of the appellant’s contention, set forth in her answer, that “ the issuing of letters of administration upon said decedent’s estate by the register of Lebanon county was' irregular and void.” The question of the power or duty of the court to open the decree confirming the appraisement, upon direct application and proof of the allegations set forth in the appellant’s answer, is not before us and we express no opinion upon it. The decree is being attacked collaterally, not directly, and the court properly held that the former is not the proper method of correcting it, even if it be erroneous.

The decree is affirmed and the appeal dismissed at the costs of the appellant.