
    Miller’s Estate.
    
      Lunacy — • Weak-minded person — Widow,—Election to take against will— lection to be made by cowrt having care of widow’s estate — Executor—Party interest.
    
    1. The guardian of a weak-minded widow cannot elect, in her hehalf, to take ider or against the will of her husband; such election must he made by the jurt having the care of her estate.
    2. Where what the widow receives under the will is sufficient for her comfort-le maintenance and support, considering her age and physical and mental condi->n, the court will not permit her guardian to elect to take against the will, espe-tlly where the effect of such election would be that the real estate thus passing her would, at her death, intestate, go to her children by a former marriage, to e exclusion of the testator’s blood relatives.
    3. An executor is not a party in interest as regards the election of a widow der the will of her husband.
    Petition of guardian for permission to elect to take against will. C. P. Montgomery Co., Feb. T., 1925, No. 6.
    
      Larzelere, Wright & Larzelere, for petitioner.
    
      H. M. & R. J. Brownback, for devisees.
    Jan. 21, 1927.
   Solly, P. J.,

O. C., specially presiding,

James S. Miller, the Isband of Rachel St. Clair Miller, died in the Township of Marlborough, this lunty, Dec. 31, 1924, leaving his last will and testament bearing date Dec. 7, 00, probated by the Register of Wills of this county, and on which letters stamentary have been granted to George M. Miller. Testator was survived his wife and issue, one son, the said George M. Miller.

By his will, the testator first directed the executor to sell and convert pea sonal property into money, and from the proceeds pay his funeral expense and debts, including all mortgage liens on his real estate. He next gav< devised and bequeathed to his wife such portion of his real and personal estai as she was entitled to under the intestate law. Then he devised a mill proj erty in Luzerne County, this State, to his son at the valuation of $6000, whic amount he directed should be paid by him to the estate. The remainder of h: real estate he directed to be held by the executor and leased, and the n< rentals divided and paid, one-third to his wife, during her life, and two-thirc to his son (and the whole net rentals after the wife’s death), during his lif He further directed that, after the death of his wife and son, the said residí of his real estate should be sold and the proceeds divided among the childre of his son, and, in default of children, to the brothers and sisters of the te, tator and their descendants by representation.

The intention of the testator, as gathered from the whole will (clumsi. drafted as it was), is that his wife should have that portion of his person estate which the Intestate Act of June 7, 1917, P. L. 429, gives to the su viving spouse where there is one child of the decedent, namely, one-half, afte however, the funeral expenses and debts, including mortgage liens, have bee paid from the proceeds of the sale thereof; also one-third of the net rentals his real estate, other than the mill property devised to the son. The devise | the wife of such portion of the real estate to which she would be entitld under the Intestate Act was wholly changed in the clause of the will folloij ing the devise. |

On March 2, 1925, the widow was declared to be a weak-minded person ll decree of this court. The Norristown-Penn Trust Company was appoint guardian of her estate and subsequently qualified. On Sept. 20, 1926, t guardian presented the petition for decree granting it permission to elect .behalf of its ward to take against the will of her husband, whereupon a n was granted on the executor to show cause why the decree should not be mac

George M. Miller, as executor and life-tenant, and Ruth Rahn, one of t remaindermen under the will, have joined in an answer to the rule, in whi they aver, in substance, that the widow is about ninety-three years of aj resides with one of her children by former marriage in a house owned by he that she has lucid intervals, and that the income which she is entitled to und the will is more than ample for her comfortable maintenance and support di ing the balance of her life, together with the proceeds of the personal este which the will gives her. They further aver that she has a separate esta The executor is not a party in interest as regards the .election of a widi under the will of her husband. Those who are beneficiaries thereunder a The son and his daughter are directly interested in the estate, and their obji tion to the right of the widow by her guardian to elect against the will mi be considered.

That a guardian of a weak-minded widow, so found by a court of compete jurisdiction, cannot elect, in her behalf, to take under or against the will her husband is clear. “The election of one of two things, when only one c be chosen for the lunatic, is undoubtedly a judicial, not a ministerial, act; . the choice thus presented by the law is one for a judicious consideration — c of judgment to be exercised upon a view of circumstances — by the coi which has the care of her estate — giving due consideration to all the advi tages and disadvantages of the choice:” Fidelity Trust Co.’s Appeal, 2 Pa. 9, citing in the opinion Kennedy, Committee of Mahon, v. Johnston, Pa. 451. The right of election is personal, to be exercised by the widow h self, or, if she he incompetent because of unsoundness of mind, by the court which has the care of her estate, unless there be a statutory power committed to the guardian: Kennedy, Committee of Mahon, v. Johnston, supra. There is no statute in Pennsylvania which gives such power to a committee or guardian.

In determining whether the guardian here should be permitted to elect, in aehalf of its ward, to take against the will of her husband, the court, as was stated in Fidelity Trust Co.’s Appeal, supra, is bound always to keep in mind :he welfare of the widow; that is the first consideration. The fact that the property and estate of the husband, or a large part of it, will be diverted :rom his grandchildren should also be taken into consideration, particularly so if what the widow receives under the will is sufficient for her comfortable naintenance and support: Fidelity Trust Co.’s Appeal, supra.

The testimony taken shows certain facts material to the determination of he case. The widow is ninety or ninety-one years old. She was a widow vhen she married Miller, and has two children by the former marriage. She iwns a house at Sumneytown, worth about $4000, which is occupied by her laughter and family, with whom she lives. Her physical health for one of ter great age is fairly good. Her mental condition is weak. She requires and eceives care and nursing, which her daughter gives her. In his lifetime, the eeedent and his wife, present widow, executed a number of conveyances of eal estate, reserving and charging thereon, in the aggregate, about $7500, he annual interest of which, at 5 per cent., or $375, is payable to the widow uring her life. This she is receiving. The rents from real estate, royalty rom a stone quarry, etc., amount in round figures yearly to $100, exclusive of spairs. The widow receives, in round figures, $700 income annually from le estate. The account of the executor, which was filed in the office of the 3gister of wills June 29, 1926, and is awaiting audit by the judge of the rphans’ Court after the disposition of this case, shows a balance of personal itate for distribution, $26,079.26, and a balance of income from personal state, $3029.29. Under the will, one-half of these balances belong to the idow. There is also an account of rents received by the executor and a bal-ice shown of $1784.66, one-third of which, under the will, goes to the widow, he testator in his lifetime provided, as above stated, that his wife during her ie should receive income by way of interest charged on real estate which he id she conveyed to purchasers. By his will he gave her half of his personal tate, after the payment of funeral expenses, debts and mortgage liens, and :e-third of the net income of his real estate (except the mill property devised his son) during her life. What she receives should be sufficient for her mfortable maintenance and support, considering her age and physical and ;ntal condition and what the testimony shows would be the expense con-cted therewith. The conclusion is irresistible that the welfare of the widow 11 be fully conserved by an acceptance of the terms of the will and a taking der it. That being so, her guardian should not be permitted to elect to take ainst the will, the effect of which, in the last analysis, would be that an divided one-half interest in her husband’s real estate passing by the provi- ® of the Intestate Act of 1917 would, at her death, intestate, pass to her o children, not of the blood of her husband, to the exclusion of his blood rndehildren.

4nd now, Jan. 21, 1927, after argument and upon due consideration, the lyer of the petition is refused.

Prom Aaron S. Swartz, Jr., Norristown, Pa.  