Rigby's Estate , 18 Pa. Super. 5 ( 1901 )

Opinion by

Beaver, J.,

The questions which are presented in this case arise under proceedings in the orphans’ court, distributing the balance in the hands of the executors of the decedent. The first assignment of error relates to the decree of the court in sustaining the auditor in not surcharging the executors with the value of certain household goods. The testimony in regard to these goods was contradictory, and, having been passed upon by the auditor and approved by the court, we will not, under our rule, interfere. There is nothing in the case which mates it exceptional.

As to the claim of the widow for the moneys received from the several beneficial societies to which her husband belonged, if she had shown herself entitled to them by competent evidence, they should not have passed into the hands of the executors as assets of the estate, nor should she be charged with them as a part of her claim for $300. Whether under the constitution and by-laws of these several associations she was so entitled does not appear. The effort was made to show by a member of one of the societies that the death benefits were payable to the widow of the member, but this was clearly not the best evidence upon the subject and not competent, under the circumstances. In Hodge’s Appeal, 8 W. N. C. 209, where it was held that the fund payable upon the death of any member was no part of the estate of the deceased member, and the appellant, as his administrator, had no right to receive it, the by-laws of the association were in evidence, and provided that “ The premium to be paid in case of the death of any member of this company may be disposed of by his last will and testament, otherwise it shall belong to and be paid to his widow, and in case he shall leave no widow, then the heirs and legal representatives of the deceased.” The witness, who was called on behalf of the widow, testified that the society, of which he and the deceased were members, although belonging to different branches, has “ a constitution and by-laws; ” that “ they are printed, and the obligations of the society and the duties and liabilities and obligations of the members may be set out in the constitution and by-laws.” These, of course, were the best evidence as to the rights of the parties in regard to that particular society, and presumably could have been easily secured and offered in evidence. There was no evidence whatever as to who were the beneficiaries in the other societies. Under the circumstances we cannot convict the court and the auditor of error in ruling that the payments by these beneficial societies belonged to the estate.

The widow made her claim for the benefit of the widow’s exemption, as it is called, September 20, 1894. “ The property elected to be retained was moneys on articles of agreement from Robert H. Shaw, being the proceeds of property purchased by the said Robert Henry' Shaw during the lifetime of said John Rigby.” The notice of the widow’s election was duly advertised and filed of record in the orphans’ court. The widow, in certain proceedings in the orphans’ court for specific performance of contract, having claimed that the money should be paid to her direct by Shaw, without passing into the hands of the executors, brought the decree of the court below, which was against her, to this court by appeal. The case is reported in 8 Pa. Superior Ct. 108. It was there decided that the money should pass through the hands of the executors. The opinion of the court ends as follows: “ With its payment (her claim for $300) from the funds of the estate the widow should be satisfied. She cannot be permitted to hamper or interfere with the executors in the orderly discharge of their duties.” It is very clear from the opinion of this court that we were then of opinion that she was entitled to the money from the executors, and this is in accord with the well settled law upon the subject. Finney’s Appeal, 113 Pa. 11, cited by both sides, is clearly to this effect. Mr. Justice Clakk, in his opinion, says : “ Her claim was for ‘ cash.’ One hundred and nine dollars and twenty-four cents was all the cash then belonging to the estate, and to this extent only her legal representatives are now entitled under that claim in this distribution. If her demand had been made, after the bonds, notes or other securitiés had been realized on, a different question would be presented, but she died before they had been converted to money. She might have claimed her exemption partly in money and partly in any of the securities, or wholly in the latter, but she did not, and we think the learned court was right in restricting the claim to the cash on hand, when the claim was made.” It has also been decided in Thomas’s Estate, 152 Pa. 68, that “ if a widow makes a demand for an appraisement of real estate, she could claim her exemption out of the fund arising from the sale of the real estate, although no appraisement has been actually made thereof.” In this case the entire claim was out of the Shaw security, and to the remainder of her claim for §300, after deducting the sum of §92.50 which the auditor finds has been paid to her by the executors, she is clearly entitled. The third assignment of error is, therefore, sustained.

The decree of the orphans’ court is, therefore, reversed, and the exceptions to the auditor’s report, so far as they relate to the' balance of the claim for §300, after deducting §92.50 already paid, are sustained, and the record is remitted to the court below to carry out this decree.