Thompson, W. Robert

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Penn State Dickinson Law: IDEAS

Volume 33 Issue 4 Dickinson Law Review - Volume 33, Issue 4 3-1-1929 Widow's and Children's Exemption in Pennsylvania W. Robert Thompson Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation W. R. Thompson, Widow's and Children's Exemption in Pennsylvania, 33 DICK. L. REV. 253 (1929). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol33/iss4/7 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEWcomplainant to the defendant was not paid, the purchasemoney to be applied on account of the amount so due.Rule 8. United Drug Company v. Kovacs," is anauthority for the rule that while a court of equity whichhas obtained jurisdiction for any purpose will ordinarilyround out the whole circle of controversy between the par-ties, still it cannot do this as to a right based on a statutewhich clearly specifies an entirely different jurisdiction forestablishing and enforcing the liability.A full and complete discussion of the application ofthis maxim cannot be presented in a few rules as statedabove, but, the author feels that these rules cover the vastmajority of the cases wherein the maxim has been followed.W. HUDSON R. UNGER.WIDOW'S AND CHILDREN'S EX'EMPTION INPENNSYLVANIA.-"The widow shall remain in her hus-oband's capital mansion house for forty days after his deathduring which time her dower shall be assigned. Theseforty days are called the widow's quarantine.".' Thus ori-ginated what today in Pennsylvania is known as the"widow's and children's exemption." The purpose of suchan allotment is to protect the family from financial dis-tress in the period immediately following the death of thehusband or father, so that one bereavement be not follow-ed by another - loss of subsistence.2The present statutory authorization allowing thewidow's exemption is Section 12a of the Fiduciaries Act of1917' which, in effect, provides that the widow, or children,in case of no widow, shall retain property or the proceedsthereof in the amount of five hundred dollars.. Section 6of the Intestate Act of 19171 providing that one year's wilfuland malicious desertion by a wife shall forfeit her interestin the deceased's estate has no application in determiningthe validity of a widow's claim for exemption under theFiduciaries Act. 514279 Pa. 133 (1924).'Blackstone's Commentaries. Vol. 2, Ch. 8, Page 135.2Sipes v. Mann, 39 Pa. 414 (1861); McGovern's Estate, 19 Berks(Pa.) 347 (1927).8p. L. 447.4P. L. 829.5Braum's Estate, 86 Pa. Super. 245 (1926); Stauffer's Estate, 89Pa. Super. $31 1926).DICKINSON LAW REVIEWThe widow's exemption is neither a title nor interestpassing under the intestate laws,6 nor an estate of inherit-ance7 but is a pure gratuity by force of law,8 an independ-ent bounty,9 dependent upon residence within this Common-wealth 10 and the family relationship."' Since the right hasthe above characteristics, it follows that a demand for thesame is necessary.' 2The widow then, as a general rule, can take her exemp-tion when it appears that she has discharged her duties asa wife. The fact that there has been a separation and thehusband has secured a divorce void in Pennsylvania' s orhas left the wife without just cause 14 will not debar thewidow's claim. The widow may elect to claim her exemp-tion in addition to a bequest in her late husband's will.' 5The claim for exemption on the part of the widow isbarred where the wife is living apart from her husbandwithout such reasonable cause as would have entitled herto a divorce.' That being the rule, it follows that wherethe separation is by mutual consent there can be no validclaim for exemption.7 So, where the wife has voluntarilyand wilfully deserted the husband ;18 likewise where therehas been a formal separation and release, the widow's claimis barred.' In the case of a widow having secured a di-vorce a menso et thoro, her right of exemption is cut off, 20OHildebrand's Estate, 262 Pa. 112 (1918); Stauffer's Estate, supra.7Hildebrand's Estate, supra; Buckland's Estate, 239 Pa: 608(1913); Peeble's Estate, 157 Pa. 605 (1893); Stauffer's Estate, supra.8Sipes v. Mann, supra; Stauffer's Estate, supra.9Note 7.'0 Platt's Appeal, 80 Pa. 501 (1876)."Crawford's Estate, 81 Pa. Super. 222 (1923); Lane's Estate, 6Dist. (Pa.) 618 (1897). Leading Case.12Andrew's Estate, 10 Erie (Pa.) 9 (1926).'3Platt's Appeal, 80 Pa. 501 (1876).14 Terry's Appeal, 55 Pa. 344 (1867); Schwartz's Estate, 10 D.& C. (Pa.) 674 (1925).15Peeble's Estate, supra; Compher v. Compher, 25 Pa. 31 (1855);Wittel's Estate, 10 Erie (Pa.) 80 (1928).'"Nye's Appeal, 126 Pa. 341 (1889). Leading Case.17Stauffer's Estate, supra; Crawford's Estate, supra.IsBraurn's Estate, supra; Ross' Estate, 6 Kulp (Pa.) 521 (1892).l9Speidel's Appeal, 107 Pa. 18 (1884); Odiorne's Appeal, 54 Pa.175 (1867).20Hettrick v. Hetrick, 55 Pa. 290 (1867); Fyock's Estate, 9 Lanc.L. R. (Pa.) 89 (1875),DICKINSON LAW REVIEWand where the widow has relied on a voidable divorce forthirty years the result is the same2Since it has been shown when the widow may and maynot take the exemption, it is now fitting to consider thechildren's right to exemption. Where there is no widow,2 2and the surviving children have maintained the family re-lationship with the lately deceased widower, 2 they areentitled to the exemption of five hundred dollars. This isso even though the children are adult and are not depen-dent upon him for support.24  An interesting problem arisesin the case of an adult daughter, married, who togetherwith her husband is maintaining the family relationshipwith her father. There are no appellate decisions on thequestion and the inferior courts are in conflict. In Steele'sEstate, 5 the court held such children not to be within thepurview of the act. The reason assigned was that the acthad in view the aid of financially distressed widows andchildren. On the other hand, in Stephenson's Estate,26the opposite result was reached. The latter case seemsmore sound because the right to take the exemption is notdependent upon the financial status of the w'dow, the statu-tes being silent on that point. Therefore, he right of thechildren to take the exemption, in absence of a widow,should not be dependent upon their extrinsic means ofsupport.Concerning the interesting question as to whethersurviving children can take from a widow's estate, thecourts have swayed from one side to the other by variousobiter dicta, the final result being found in the three follow-ing cases. The first, King's Appeal,27 held that the childrencould not take the exemption from their mother's estatewhere the father survives and by dictum says thatchildren can never take from their mother. The next,2 8limited the above case and held that children could taketheir exemption when their father had been absent forseven years (presumably dead). The last,29 in turn limited"Limnber's Estate, 284 Pa. 346 (1925).22Alexander's Estate, 13 Phila. (Pa.) 564 (1878).23Geheringer's Estate, 10 D. & C. (Pa.) 279 (1927).24Geheringer's Estate, supra; Hornberger's Estate, 30 Dist. (Pa.)907 (1921); Lane's Estate, supra.2513 Phila. (Pa.) 398 (1880).2641 C. C. (Pa.) 260 (1913). See also Hornberger's Estate, supra.2784 Pa. 345 (1877).2SHime's Appeal, 94 Pa. 381 (1880).2"Wanger's Appeal, 105 Pa. 346 (1884).DICKINSON LAW REVIEWthe second case so that where a wife has been devised pro-perty which is bound by liens, on the widow's death theclaim of the creditors is superior to that of the children.What amounts to a waiver or release of the widow'sright to retain her exemption? Clearly, the right is re-leased by an ante-nuptial agreement,3 0 waiving all rights inher husband's estate and the result is the same in the caseof a post-nuptial agreement." There is no definite timefor making the claim, but it must be made before the estatehas so changed, that expense and embarrassment would re-sult from the allowance of the claim.3 2 Of course, she hasno right of exemption where she has married again, with-out receiving her claim. 8 If the widow has taken part ofthe five hundred dollars from the personalty and has madeno claim for the remainder due her, prior to a sale of therealty, she will be deemed to have waived her right,"4 aswhere she has made a claim antagonistic to the funds fromwhich she now seeks her exemption."3As a general rule, the widow's and children's exemp-tion is allowed regardless of whether the decedent diedtestate or intestate, or whether the estate is solvent or in-solvent. 86 The widow's claim takes precedence to debtsnot liens, 7 judgments that are liens,38 distraint of landlordon a lease made by the decedent,39 mechanic's liens,"° taxclaims, 41 funeral expenses of the decedent,4 2 and claims ofthe United States for overpayments made to the decedentfor disabilities received in the late war.4  However, thereBOTiernan v. Binns, 92 Pa. 248 (1879).B'Haerdler's Estate, 81 Pa. Super. 168 (1923).32Lane's Estate, supra.33Burk v. Gleason, 46 Pa. 297 (1863).84Hutrnan's Appeal, 81 Pa. 329 (1876). See also Baskin's Appeal,38 Pa. 65 (1860) and Davis' Appeal, 34 Pa. 246 (1859).35Couritryman's Estate, 151 Pa. 577 (1892).36Baldy's Appeal, 40 Pa. 328 (1861); Hill v. Hill, 32 Pa. 511 (1859);Compher v. Compher, supra.37Hill v. Hill, supra.38Kauffman's Appeal, 112 Pa. 645 (1886); Notter's Appeal, 45 Pa.361 (1863); Spencer's Appeal, 27 Pa. 218 (1856).39Sweeney v. Dumont, 36 C. C. (Pa.) 552 (1909).4OHildebrand's Appeal, 39 Pa. 133 (1861).4lAllentown's Appeal, 109 Pa. 75 (1885).'2Weir's Estate, 20 Phila. (Pa.) 146 (1891); Luke's Estate, 17Phila. (Pa.) 517 (1885).'8 Jones' Estate, 84 Pa. Super. 170 (1924).DICKINSON LAW REVIEWare two cases in which the widow's claim is not superior.Where the decedent had executed a mortgage, the mort-gagee has priority over the claim of the widow," and thecosts of the administration also take priority to the right ofthe widow.4 5 The reason assigned in the last case is thatsuch expenses are incurred in the ascertainment of theamount of the estate without which, the estate has not legalexistence.4" It is submitted, however, that since the pur-pose of the exemption is to furnish subsistence until theestate has been ascertained, the exemption should takeprecedence to the costs of the administration of the estate.W. ROBERT THOMPSON.CREATION AND TAXATION OF JOINT BANK DE-POSITS-The first situation to be considered is the casein which a deposit is made in a bank by one person in thenames of two others. If these two persons are not hus-band and wife the deposit will create a joint-tenancy. Atcommon law the right of survivorship was an incident of ajoint-tenancy. But this right of survivorship has beenabolished by the Act of March 31, 1812, 5 Sm. L. 395.1 Thus,a mere deposit in the names of two persons not husbandand wife would by virtue of the Act of 1812 create a joint-tenancy without the right of suvivorship. Therefore, up-on the death of one of the persons in whose name the de-posit is made, the decedent's interest in the fund would notvest in the survivor by operation of the right of survivor-ship, and could, consequently, be subjected to an inheritancetax. But if in the creation of the joint -tenancy it has beenprovided 2 that the right of survivorship shall apply, thenupon the death of one of the joint-tenants, the survivor isdeemed to be the sole owner by virtue of the right of sur-vivorship s and a tax levied upon the decedent's interest inthe fund is improper. The reason for this is that the Act44Kauffman's Appeal, supra; Allentown's Appeal, supra; Nerpel'sAppeal, 91 Pa. 334 (1879).45McIntyre's Estate, 44 C. C. (Pa.) 111 (1915)'.'8 Weir's Estate, supra.'Mardis, Admrx. v. Steen, 293 Pa. 13, 16.2Arnold v. Jack's Admr., 24 Pa. 57 (right of survivorship given bydirection of testator) ; Redemptorist's Fathers v. Lawler, 205 Pa.24; Kerr v. Verner, 66 Pa. 326; Jones v. Cable, 114 Pa. 586; Lentzv. Lentz, 2 Phila. 148 (by implication of words in will).8 Mardis, Admrx. v. Steen, supra,

Widow\u27s and Children\u27s Exemption in Pennsylvania

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Widow\u27s and Children\u27s Exemption in Pennsylvania

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