
    KOONCE’S APPEAL.
    . It is the duty of an executor asking the widow to make her election, whether to take under her husband’s will or not, to inform her of the condition of the estate, fully and correctly.
    Where a widow has been misled by the executor, as to the estate, even though innocently, she can rescind her election to take under the will.
    Appeal from Orphans’ Court of Mercer county, No. 120 July Term, 1882.
    In this case an auditor reports as follows :
    The material facts set out in the petition, briefly stated are :
    That Charles Koonce, husband of the petitioner, died on September 17th, 1880, having first made his last will, which-was probated September 27th, 1880, of which Samuel C. Koonce, William H. Koonce and G. W. Phillips are executors.
    That at the time of his death said Charles Koonce was the owner of a large amount of land situate in Pennsylvania and other States,» and was a man of large wealth, the amount of which she is unable to state, as neither her husband nor the executor of his will had informed her of the extent or value of the estate.
    That a very meagre provision is made for her by said will*
    That on October 1st, 1880, at the request of Samuel C„. Koonce, one of the executors of said will, she signed a written acceptance of its provisions for her. That on the same day, after signing the acceptance, said Samuel C. Koonce presented to her a contract whereby she relinquished all of her rights-in the homestead farm in cons; deration of the use of two rooms in the dwe ling thereon and sufficient food and clothing, and that a few days after she received from the executors,, and receipted for, the sum of eight hundred dollars cash and one thousand dollars in bank stock.
    That all these contracts, papers and receipts were signed by her without any consideration aud in ignorance of what she was doing and what rights she was thereby surrendering and' giving away.
    
      She therefore prays,
    First. That thj said alleged acceptance of her husband’s will may be declared null and void and of no effect.
    Second. That the article dated Oct. 26 th, 1880, between S. •C. Koonce and herself, may be declared null and void and surrendered and cancelled.
    Third. That the receipt given by her for any money re-' ■ceived from said executors may be applied on her distributive share of said estate, and not under the provisions of said will, as they purport to be.
    Fourth. That she may now be permitted to take under the intestate laws.
    The respondents filed an answer denying all the allegations of fraud, concealment or unfairness on their part, and the ignorance of the petitioner of the amount and value of her husband's estate or of her rights therein.
    From the testimony returned with this report, and from the admissions of facts set forth in the petition, your Auditor finds the following facts :
    First. That Charles Koonce died on September 17th, 1880, leaving surviving him a widow, the petitioner, Mary Koonce, to whom he was married in 1848, and with whom he lived from that time until the time of his death. He also left several children by a former wife, among whom are Samuel C. Koonce, William H. Koonce, and Ra chel, wife of G. W. Phillips, the respondents, and several grandchildren, but left no issue of marriage with petitioner.
    Second. That the petitioner, at the time of her marriage to said Charles Koonce, was a widow about forty-two years old, .and is now about seventy-five years of age; and is a woman of ordinary intelligence, with her mental faculties no more impaired than is usual in persons of her age.
    Third. That by his last will, dated December 29th 1871, and tw.o codicils thereto, one dated August 13th, 1875, and the other July 19th, 1878, said Char’es Koonce devised to the petitioner during her natural life the farm upon which they then lived called the homestead, contain ng about 83 acres and worth about two hundred and fifty dollars a year, and becjueathed to her absolutely personal property such as she might choose, to the value of five hundred dollars, in add.tion to the three hundred dollars allowed her by law, one thousand dollars in money, and the interest on one thousand dollars-which he directed his executors to invest in United States bonds, said interest to be paid to her annually, and the residue of his estate he devised and bequeathed to his children, and grandchildren, the issue of deceased caildren.
    Fourth. That in June or July prior to his death the said Charles Koonce distributed bank stock and other personal, property of the value of about twenty-five thousand dollars-among his children and certain of his grandchildren.
    Fifth. That at the time of his death the said CharlesKoonce was the owner of almost 2,700 acres of land in Mercer county, Pennsylvania, consisting of between 20 and 30 farms, bought at different times, the greater part of which is-within a radius of four miles from his late residence, and none farther than six miles dista .ce; 275 acres in Lawrence county and 40 acres in Union county in said State; about 1,500 acres-in West Virginia, 320 acres in Iowa, 160 in Nebraska, and. 960 acres in the State of Missouri.
    Sixth. That the lands in Mercer county are of various values, worth in the aggregate about $135,000; those in Lawrence county are worth $8,000; these in Union county about $8,000; those in West Virginia about $22,000; those in Iowa about $3,200; those in Nebraska about $1,600, and those in Missouri, about $6,720.
    Seventh. That in addition to the lands above mentioned the said Charles IC-once left at his death personal property worth about $8,000, making the total value of his estate about $192,000.
    
      Eighth. That on October 1st, 1880, the petitioner signed a paper which had been previously prepared by respondents' attorney, purporting to be an acceptance of the provision made for her by the will of her husband, in the presence of two of the respondents and of Joseph McClure.
    Ninth. That immediately before petitioner signed said acceptance she was informed by said- McClure, a layman, who had been brought to the house by sai 1 S. C. Koonce for the purpose of informing petitioner of her rights, and on one other occasion before that by G. W. Phillips, in the presence of S. C. Koonce, that if she elected to take under the intestate law, instead of under the will, she would be entitled to one-third of the personal property after payment of debts and expenses, and one-third what the real estate would rent for after deducting repairs and taxes.
    Tenth. That the respondent did not furnish the petitioner with a schedule, inventory or statement of the real or personal property of her husband, or such other information as to the value of such property or the rents of the realty as would enable her to form an intelligent estimate of such value or rents.
    Eleventh. The petitioner knew that her husband was the owner of large quantities of land in Pennsylvania and elsewhere, land something of the location and general character of a great part of this land, but not its value or what it would rent for. She also knew that her husband was reputed a wealthy man, but did not know the amount of his estate or of what it consiste 1.
    Twelfth. That when the petitioner signed said alleged acceptance — “Exhibit A" — she had not such a knowledge of the extent, value atid circumstauees of her late husband’s estate, or of her rights therein, as was nec.ssary to enable her to make an intelligent choice between the provisions made for her by her husband’s will and what she would be entitled to under the law if she refused to take under said will.
    Thirteenth. That the petitioner executed said acceptance — - “Exhibit A” — under the influence of the information as to lier rights imparted to her by G. W. Phillips and Joseph McClure, which was imperfect, erroneous and misleading.
    In response to a request of the respondents to find certain facts, the Auditor finds the following in ad lition to the foregoing facts :
    Fourteenth. That on September 29th, 1880, the petitioner received a letter from E. C. Thompson, her son by a former husband, in which he mentioned that Charles Koonce left a fortune of $250,000, and advised her not to be in a hurry, stating that she had a year in which to elect; that the executors would have to file an account first; that she was entitled to one-third of the personal and real estate. Two days after she signed the paper of acceptance — “Exhibit A.”
    The execution by the petitioner of the paper — “Exhibit A” —purporting to be an acceptance of tie provision made for her by the will of her late husband, Charles Koonce, being admitted, the only question which presents itself is, was that-paper executed by the petitioner with such a knowledge of the extent, character and circumstances of her husband’s estate and of her rights therein, as ivould enable her to make a discriminating and judicious choice between the provision made for her by her husband’s will and that provided for her by law, if she should elect to take under the latter instead of the former ? If she did not have such knowledge, her election is ■not binding. The 35th section of the act of Mar. 29th, 1832, P. L., page 200, gives a widow twelve months in which to elect to take under the will of her deceased husband or her dower. And if she does not within that time make an election the proper Orphans’ Court may issue a citation requiring her to appear in open court and make such election, of which a record is made.
    In the present case the respondents did not see fit to avail themselves of the method provided by the act referred to, but instead accepted an election in pais; the burden therefore is upon them to show that such election was made by the petitioner with a full knowledge of all the circumstance of her husband’s estate, and of her rights therein ; Bierer’s appeal, 11 Norris, 265 ; Anderson’s appeal, 12 Casey, 476.
    The respondents do not pretend that they gave or exhibited to the petitioner any inventory or statement of her husband’s personal estate, and the only information concerning it given-to her by any one of which there is any evidence is a statement made to her by S. C. Koonce on the evening of September 27th, 1880, “that when the debts and expenses of settling the estate wrere paid he thought there would not be much left; that there might be enough, and perhaps would be enough, to-pay her her $1,800 if she took under the will.” Also a statement made to her the same evening by G. W. Phillips, to the.same effect, based on what he had heard William and S. O. Koonce say as the result of their calculations. No amounts, were mentioned, and, excepting the statement referred to, no information was given to her from which she could form any estimate of the amount of the personalty. While the statements made by Samuel C. Koonce and by Phillips were probably as near the fact as they could then arrive, they were, necessarily, in some degree misleading, since the evidence shows-a residue of something over $3,000 after payment of debts and expenses.
    There is no evidence showing that the petitioner, during her husband’s life, knew the value of his personal property, or of what it consisted. She testifies that he did not inform her of his business transactions, and she is not contradicted. But whatever information she may have had in that respect before-the distribuí.on made by her husband in June or July, 1880, after that, under all the evidence, she certainly had scant information for forming any estimate of what remained at his-death.
    Executors do not deal with the widow of tlisir testator at-arm’s lengths in matters pertaining to her election. Not only must they use the utmost good faith, but they will not be allowed to offer ignorance as an excuse for failing to inform her of the circumstances and condition of her husband’s estate before procuring or accepting an election in pais; the means of procuring such information, particularly as to the personal property, are peculiarly within their power, and it is their duty to inform themselves and to give the widow the benefit of their knowledge. If they neglect this precaution, and permit the widow to elect without sufficient information, she is not bound.
    It is very clear to the Auditor that the petitioner’s knowledge of her husband’s real estate was, at best, vague and uncertain. No effort was made to prove that her husband ever communicated to her any information concerning his property except as to probably one or two pieces ; indeed, she testifies that he did not; that he never told her that he owned any lands outside of Mercer county, and that she learned that he owned lands in the West only from his conversations with others in her presence. In all she is not contradicted. She further testifies that she did not know the quantity, value, or rentals of husband’s lands.
    While she was undoubtedly informed at the time the West Virginia lands were purchased, what they cost, that the land purchased by William about 1870 was wild land, valuable for its timber and minerals chiefly, and that a part of the land purchased by Samuel C. about 1876 was partly improved, but not how much was in that condition or the condition of the improvements, there is no evidence showing that she has since that received any further information in regard to them or that she knew their value or condition when she made her election on October 1st, 1880. She testifies that she did not know the quantity or value of the Western lands and in this she is corroborated by William H. Koonce, who testified to a conversation had with her in 1878, concerning this land, in which she asked him how much there was and he replied that there had been 2,000 acres, but that a part had been sold or traded off and that she ought to know as much about it as he did since she signed the deeds. There is nothing to show that she received any information as to these lands after that time.
    While it is unquestionably true that the petitioner during her residence of nearly or quite thirty years with her husband, ■Charles Koonce, on one of his farms in the vicinity of the greater part his Mercer county lands, gained a knowledge of the fact that he owned large . tracts of land in that county, that, of itself, would not warrant the presumption that she knew the value of those lands or that she had such knowledge as would enable her to form even an approximate estimate of such value, particularly in view of her uncontradicted statement that her husband did not communicate his business affairs to her, Nor does the testimony of the respondents or of their witnesses throw much light on this question. At most it shows that she knew the location of many of the farms, who lived on some of them, what price was paid for some, and the rents derived from probably two or three, but utterly fails to show that she had anything like an adequate knowledge of the quantity, quality, condition and value of these lands, or :such information as would enable her to make an intelligent estimate of their value or rentals, or that she had ever seen more than a portion of the Mercer county lands, and it is not pretended that she ever saw any of the lauds lying outside of that county. The respondents testify that a few days before the petitioner signed the acceptance, at one time they stated to her the provisions of the will, discussing each particular device, and within a day or two after read the will to her, but nothing was said about the values of the properties or their ■condition. The respondents do not contend that they gave the petitioner any statement of the value of her husband’s estate ■nr of what it consisted, and indeed from their own testimony it is doubtful whether they could have stated its value without careful calculation. ¥m. H. Koonce testified that he could not have given even an intelligent estimate without ascertaining what each piece of property was worth and going into details. S. C. Koonce testified that he did not know how much 'his father was worth and was unable to give the value of the western lands, and yet these two men had transacted all or nearly their father’s business, according to the testimony of P. ■C. Koonce, fo." about fifteen years before his death. No doubt dhe petitioner knew that her husband was a wealthy man, but there is no evidence of any knowledge beyond that. In the light of all the evidance it is not probable that the petitioner, a woman aged 75 years, subject to infirmities, physical and intellectual, incident to her advanced age, could form any estimate approximating to correctness of the character, value, quantity and circumstances of her husband’s estate, or of the numerous tracts of land of which he died seized, purchased at different times, during a long series of years, and situate in five different States, a great part of which she had never seen
    An election by matter in pais can only be determined by plain and unequivocal acts under a full knowledge of all the ■circumstances and of the parties’ rights. One is not bound to elect until he is fully informed of the relative values of the things he is to choose between, and if he make an election before the circumstances necessary to a discriminating and judicious choice are ascertained he will not be bound.
    Anderson’s Appeal, 12 Casey. 476; Bierer’s Appeal, 11 Norris; Duncan vs. Duncan, 2 Yeates, 302 ; Cox vs. Rogers, 27 P. F. Smith, 165; Story’s Eq., sec. 1098.
    The evidence in this case falls far short of showing that the petitioner had the knowledge of the character, value and circumstances of her husband’s estate, necessary to make a discriminating and judicious choice.
    The auditor is of the opinion that the petitioner’s alleged election is not binding for the further reason that she was misinformed as to her legal rights in her husband’s estate.
    Whatever view may be taken as to the duty of the respondents as executors or devisees under the will in question in respect to furnishing information to the petitioner of the extent and value of her husband’s real estate, the auditor is of the opinion that it was their duty, if they understood, to inform her of her rights, to see that such information was correct, and that if relying upon erroneous information derived from respondents she has been misled, she is not bound by her election. Under the act of April 20th, 1869, P. L, page 77, wdiere the widow of a testator refuses to take under the will, in lieu of her dower at common law, she is entitled to suoh interest in the real estate of her deceased husband as the widow of decedents dying intestate are entitled to under the intestate laws of this Commonweal h, and the proper Orphans’ Court has-power, on application of the widow, to award an inquest to make partition, and to secure the interest of the widow in the same manner as is now provided in the partition of the real estate of intestates. While the petitioner testifies in substance that she had no knowledge of the provisions of the statute, or of her rights under it, there is nothing to show what knowledge she did have prior to September 27, 1880, of her legal rights in her husband’s estate. The evidence shows, however,, that on the evening of that day the respondents had a conversation with the petitioner on the subject of her husband’s-estate, and of her rights therein, in which G. W. Phillips stated to her that if she refused to take under the will she could get one-third of the personal property and one-third of what the real estate would rent for after deducting taxes and repairs, and on Oct. 1st, immediately before the petitioner-signed the acceptance, Joseph McClure, in informing her of her rights, as he supposed, made the same statement in substance, in nearly the same words, both of which statements were erroneous and misleading. McClure was- taken to the house by S. O. Ko nee for the purpose of closing up the matter of the acceptance of the will, and instructed by him, no doubt in good faith, to inform petitioner of her rights.
    While there can be no doubt that these parties stated her right to the petitioner as they believed and understood them,, that will not relieve the respondents if she has been mislead thereby. That the petitioner acted on the statements of her rights made by Phillips and McClure, in the opinion of the-auditor, does not admit of a doubt. Under the law, as stated to her, if she refused to accept the provisions of the will her income would be uncertain, varying from year to year, the amount dependent on the rental value of the lands, the rate of taxa ion, and the necessity for repairs, and as, according to-Phillips’ statement to her, some of the farms were in bad repair,. her income would necessarily be diminished considerably for a time. To this would be added the care of her interests in lands lying in five States. These considerations must necessarily have exercised a very great influence over her choice. The petitioner’s declarations further confirm this view. On the •evening of September 27th, after Phillips had stated her rights to her, as he understood them, she replied that she would g et more under the will then than she would by taking under the law. It is not clear to the Auditor whether this reply of petitioner vTas before or after S. C. ICoonce had told her that after the debts, expenses and her legacy were paid there would not be much left from the personalty, but it was al 1 in one conversation, and in the same connection. She at the same time said that if she was twenty years younger she would consider the other side of the question, she would know what to do. On October 1st, 1880, after McClure had told petitioner that if she took under the law she would get one-third of the rents after deducting taxes and repairs, she remarked that it would be a great deal of trouble for her to look after these matters.
    S. C. ICoonce testifies that on that occasion she said, “I don’t want any trouble and want to accept under the will,” and that before she executed the paper called the acceptance, she asked McClure what he thought she ought to do, but he declined to advise her.
    The inequality of the two funds is, of itself, almost sufficient to raise a presumption that the petitioner either did not know the amount and circumstances of her husband’s estate, or that she was ignorant of her rights therein. Under the will, she is entitled to $1,800 absolutely and the interest on $1,000, amounting to $60 annually, and the use of a farm worth $275 a year, giving her an annual income of not over $335, from which taxes and repairs must be deducted. On the other hand, under the intestate law, she would be enti led to receive frcm the Pennsylvania property alone $300, exemption about $1,000, the one-third of the property absolutely, and about $3,000 annually, being the interest on one-third of tne value of the real estate as shown by the evidence. Neither the fact that the petitio ~er urged or desired an immediate closing up of the matter of her acceptance, nor her expressions of satisfa tion with the provisions of the will, ought to have much weight in view ot her wint of knowledge of the value and circumstances of her husband’s esta e, and of her rights 1 herein. She did not seek counsel from any one unless it be from McClure, when she asked him before signing the acceptance what she should do; but she seems to have rested on the statement of her rights and the condition of the estate made to her by the respondents on the evening of September 27th. She had a right to believe that the respondents know more of the conditions of her husband’s estate than any other person, and that they would give her the benefit of that knowledge and that they would deal fairly by her. The letter from her son, E. C. Thompson, was received by petitioner a day or two after the conversation of September 27th, and, at most, was but a caution not to act hastily; it contained no information as to her liusbai d’s estate beyond a statement which she would naturally treat as mere conjecture, and gave her no new light as to her rights. If, as she was led to believe, she would get more under the will than under the law, there was no necessity for delay, and by promptly electing she could get S. C. ICoonce to take charge of the farm and make needed repairs. Upon the whole, then, the Auditor can come to no other conclusion but that the petitioner was ignorant of her rights and that in making her election she acted on the erroneous information given to her by the respondents and by Joseph McClure, and was mislead thereby to her prejudice.
    The respondents r. ly upon Light vs. Light, 9 Harris 407, to support their position that the petitioner cannot be relieved of her acceptance by a mistake as to her rights. The Auditor is of the opinion that that case is not in point, and even if it was, that its authority is much weakened by subsequent cases. In that case it was not contended that. he widow was misled, or was there such gross inequality between the two funds as here. In Kreiser’s Appeal, 19 P. F. Smith, 194, Judge Pearson said of it: “That case was on the very verge of the law. was barely sustained in an action of dower, and possibly might, have been decided otherwise had Anderson’s Appeal been in existence as a governing example.”
    Toomey’s Appeal, 2 W. N. C., 682, is a case on all fours; with this. There the widow executed a written release of her claims against the estate of her husband, but in ignorance of rights, and upon her application to the Orphans’ Court to take* under the intestate law, the release was held not binding and. she was permitted to make her election as prayed for.
    The only question remaining is, is the petitioner estopped by the fact that she accepted and still retains the legacies bequeathed to her in the will, or by her receipts signed after she* had made her election? There is no evidence that she was any better informed of her rights at the time she accepted the* money and property bequeathed to her and signed the receipts, therefor, than when she signed the paper of acceptance. She. is not estopped therefore on that ground. Nor in the opinion of the auditor is she estopped by the fact that she retains the-property and money beqeathed to her. In Anderson’s Appeal, 12 C., 474, the widow was not estopped by that fact. The* question is, can she restore the other persons affected by her claim to the same situation as if the acts had not been performed ?
    Story’s Eq., sec. 1097. There is no evidence here that the respondents or other beneficiaries under the will have been in any way injured. Restitution can be made by repayment of the value of the property received, or it may be adjusted on distribution.
    The Auditor is of the opinion that the Orphans’ Court has. no jurisdiction over the article of agreement made between petitioner and S. C. Koonce on October 1st, 1880, by which, she transfered the homestead farm to him, or of any question arising under it. If she is entitled to the relief prayed for in respect to that agreement she must seek it in a Court of Equity.
    The Auditor is therefore of the opinion that so much of the ■petition as re ates to that article of agreement should be dismissed. As a final conclusion your Auditor is of the opinion that the alleged election made by the petitioner on October 1st, 1880, evidenced by the paper signed by her at that time, is not binding on her because she had not sufficient information of the extent, value and circumstances of her husband’s estate, or of her rights therein, to make a discriminating and judicious choice, and that she should be permitted to make her election in the Orphans’ Court as prayed for in her petition.
    Koonce’s executors filed eleven exceptions to the Auditor’s report, but the Court overruled them in the following opinion, per
    McDermitt, P. J.
    After a careful reading and consideration of the evidence, I am of the opinion that the Auditor’s findings of facts are sustai ■ ed by it. I am also of the opinion that his legal conclusions are sustained by the authorities he cites.
    The eleventh exception reads, “The Auditor erred in not finding and holding that the Orphans’ Court has no jurisdiction of the subject matter in the way or manner asked for in this petition.”
    This is the only exception I shall attempt to discuss, and shall do so for the reason that the Auditor expresses no opinion upon the question of jurisdiction so far as it concerns the main qut stion involved, to-wit: Whether this Court has power to declare “null and void” the paper dated October 1, 1880, purporting to be the petitioner’s acceptance of the provisions of her husband’s will, and that it shall have no effect either in law or in equity. The only allusion’he makes to the question of jurisdiction is as follows : The Auditor is of the opinion that the Orphans’ Court has no jur.sdiction over the article of agreement made between the petitioner a'nd S. C. Koonce, Oct. 1, 1880, by which she transferred the homestead farm to him, or of any question arising under it. If she is entitled to the relief prayed for in re pect to that agreement, she must seek it in a court of equity. The Auditor is therefore of the opinion, “that so much of the petition as relates to that article of agreement should be dismissed.” No exception having been filed to the opinion in this respect I have no occasion to say anything about it. That the Orphans’ Court has exclusive jurisdiction over the subject of the distribution of the decedent’s estate between the petitioner, whether she shall take under the will or may elect to take under the intestate laws, and the legatees under his will, no lawyer should question. See Whiteside vs. Whiteside, 8 Harris, 473.
    It is true the equity powers of this court are only such as are conferred upon it by statute, but where it has jurisdiction so conferred, and where it has, as in this case, attached over the fund for distribution, “it comprehends within its grasp all powers necessary to make distribution.” Williamson’s Appeal, 13 Norris, 231. This case and these therein cited leave no doubt whatever of the jurisdiction of this court upon good and legal and equitable cause shown to declare null and void the petitioner’s alleged written election to take under her husband’s will, and such cause I think the facts found by the Auditor furnish.
    Of the jurisdiction of this court, Woodward, J., in Shollenberg’s Appeal, 9 H., 341, says, “within its appointed orbit (its juri diction) is exclusive and necessarily as co-extensive as the démands of justice.” In my opinion the demands of justice in this case demand that the said alleged election of this widow to take under the will be declared utterly null and void, and of no equitable or legal effect whatever; and the Court has the power to do this. In Dundas’ Appeal, 23 Smith, 474, the lower court held that it was necessary to go into a court of equity to have a deed canceled, which was in the way of a proper distribution, but the Supreme Court reversed the ruling.
    And now, May 20th, 1882, the exceptions to the Auditor’s report having been fully argued on the 27th of April last, and having in the meantime been duly considered, it is now ordered, adjudged and decreed as follows, to-wit:
    First. That the exceptions to said report be overruled and the report be finally confirmed.
    
      Second. That the said paper or written agreement signed by the said Mary Koonce, as the widow of Charles Koonce, late of said county, deceased, on the 1st day of October, 1880, and purporting to be her election to take under the provision of the will of said decedent, is, and shall be, and remain, utterly null and void, and of no equitable or legal effect whatever.
    Third. That the said Mary is granted the permission to-take as said widow, under the intestate laws of this Commonwealth, whatever distributive interests she may, under said laws, have in the real and personal estate of her said deceased husband’s estate.
    Fourth. That she has the right to secure to herself such distributive interests in said estate by the same process, remedies, or proceedings in the courts which she could have employed for that purpose if she had never executed and delivered to the executors said alleged election to take under the provisions of said will.
    Fifth. That the sums of money which have heretofore been receipted for by her to the executors of said estate shall be deducted from her distributive share in said estate under the intestate laws, and not as having been received by her from them under the provisions of said will.
    Sixth. That S. C. Koonce, ¥m. Koonce and G. W. Phillips, the executors of said estate, shall pay the costs of this audit, but shall be allowed a credit for the same in settlement of their trust account.
    Koonce’s executors then appealed to the Supreme Court, assigning a arious errors covering the ruling of the Court and Auditor.
    S. H. Miller, J. A. Stranahan and B. Magoffin Esqs., for plaintiff in error,
    argued that Anderson’s Appeal, 36 Pa., 476; was a case of implied election; here the election is express. To set aside her election, “the evidence of fraud should be clear, precise and indubitable;” Bierer’s Appeal, 92 Pa. 267. This case is ruled by Light vs. Light, 21 Pa., 407.
    
      Samuel Griffiths and J. G. White, Esqs., contra.
   Tlie Supreme Court affirmed, the decree of the Orphans'" Court on December 11th, 1882, in the following opinion:

Per Curiam.

The Auditor reported that the evidence in this case falls far-short of showing that the petitioner had the knowledge of the character, value and circumstances of her husband’s estate* necessary to make a discriminating and judicious choice. We think he is sustained by the evidence in this finding. The-authorities which he cites fully support his conclusion, As to the jurisdiction of the Orphans’ Court, we concur in the opinion filed by the learned Judge in the Court below.

Decree affirmed and appeal dismissed at the costs of the appellant.  