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DOWER.

See ACTIONS REAL; DECEDENTS' ESTATES; EQUITY.

1. Widow's share, in case of intestacy.

2. To be in lieu of dower.

3. Widow and children to retain $300 additional. 4. Devise or bequest to be in lieu of dower.

Widow may elect to take her dower.

5. And also her share of the personalty. 6. Widow may be cited to make election.

7. Common pleas, in Philadelphia, to have equity powers, in cases of dower.

8. Courts to have jurisdiction where lands lie in several counties. To be commenced in the county of

8 April 1833 § 1. P. L. 315.

the domicil. Service of process. Exemplifications to be filed in other counties. Effect thereof.

9. Dower not to abate by death of plaintiff. Executors may recover arrearages.

10. Interest of widow who elects not to take under her husband's will.

11. Orphans' court to award inquest.

12. Satisfaction, extinguishment and discharge of dowers, legacies and other charges on lands. Publication of notice. Citation. Decree. Proceedings to be recorded.

1. The real and personal estate of a decedent, whether male or female, (i) remaining after payment of all just debts and legal charges, which shall not have been sold or disposed of by will, or otherwise limited by marriage settlement, shall case of intestacy. be divided and enjoined, (enjoyed) as follows, viz.:

Widow's share, in

Ibid. § 15.

14 April 1851 § 5. P. L. 613.

Widow and chil

additional.

I. Where such intestate shall leave a widow and issue, the widow shall be entitled to one-third part of the real estate for the term of her life,(k) and to one-third part of the personal estate absolutely.

II. Where such intestate shall leave a widow and collateral heirs, or other kindred but no issue, the widow shall be entitled to one-half part of the real estate, including the mansion-house and buildings appurtenant thereto, for the term of her life, and to one-half part of the personal estate absolutely.

2. The shares of the estate directed by this act to be allotted to the widow, shall be in lieu and full satisfaction of her dower at common law. (/)

3. The widow or the children of any decedent dying within this commonwealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of three hundred dollars, and the same shall not be sold, but sufdren to retain $300 fered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the act passed the 9th day of April, in the year 1849, entitled An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent: "(m) Provided, That this section shall not affect or impair any liens for the purchase-money of such real estate. And the said appraisement, upon being signed and certified by the appraisers and approved by the orphans' court, shall be filed among the records thereof.(n)

8 April 1833 § 11. P. L. 310.

66

4. A devise or bequest by a husband to his wife of any portion of his estate or property, shall be deemed and taken to be in lieu and bar of her dower in the estate Devise or bequest of such testator, (o) in like manner as if it were so expressed in the will, unless such testator shall in his will declare otherwise: Provided, That nothing herein contained shall deprive the widow of her choice either of dower, or of the estate or to take her dower. property so devised or bequeathed.(p)

to be in lieu of dower.

Widow may elect

(i) An alien is not entitled to curtesy. Reese v. Waters, 4 W. & S. 145; or dower, Shanks v. Dupont, 3 Pet. 246; Kelly v. Harrison, 2 Johns. Cas. 29; Co. Litt. 31 b; sed quære, as to the effect of the Stat. 8 Hen. V., cited in Co. Litt. 31 b, note 9? See Sutliff v. Forgey, 1 Cow. 89. Mick v. Mick, 10 Wend. 379. Connolly v. Smith, 21 Ibid. 59. Sistare v. Sistare, 2 Root 468.

(k) Her interest in the land of which her husband died seised, is but an annuity in the nature of a rentcharge. Power v. Power, 7 W. 212. Borland v. Nichols, 12 P. S. 38. The legislature have excluded her from the enjoyment of the land itself. Pringle v. Gaw, 5 S. & R. 536. Except where her purpart is laid off by metes and bounds, under proceedings in partition in the orphans' court. Bishop's Appeal, 7 W. & S. 251. Gourley v. Kinley, 66 P. S. 270. She cannot maintain ejectment. Bratton v. Mitchell, 7 W. 113. Gourley v. Kinley, 66 P. S. 270. Nor can she be made defendant in partition. Power v. Power, 7 W. 205. But her title is bound by a judgment. Thomas v. Simpson, 3 P. S. 60. Shaupe v. Shaupe, 12 S. & R. 12. And may be divested by proceedings in partition. Thomas v. Simpson, 3 P. S. 70. Her statutory interest is not like dower at common law, but she has an estate in the land, which vests at the moment of her husband's death. Gourley v. Kin

ley, 66 P. S. 270. And see Bachman v. Chrisman, 23 Ibid. 163. Helfrich v. Weaver, 61 Ibid. 385. Schall's Appeal, 40 Ibid. 170. Zeigler's Appeal, 1 Chest. Co. R. 515.

(1) The act is confined, in its operation, to lands of which the husband was owner at the time of his decease. Riddlesberger v. Mentzer, 7 W. 141. Leinaweaver v. Stoever, 1 W. & S. 160. Borland v. Nichols, 12 P. S. 40. And does not extend to such as he has aliened in his lifetime. Borland v. Nichols, 12 P. S. 42. In Pennsylvania dower and curtesy are incident to both legal and equitable estates. Pryor v. Wood, 31 P. S. 147. Dower is barred by a judicial sale for the husband's debts, and by proceedings under a mortgage to which the wife was not a party. Scott v. Croasdale, 2 Dall. 127.

(m) See tit. "Execution."

(n) See tit. "Decedents' Estates."

(0) See supra 2, note 1. The widow, under this act, standing as if her dower had been expressly prescribed by the testator, is not a volunteer, but a purchaser. Reed v. Reed, 9 W. 263.

(p) A widow who elects to take her dower in lieu of the provision in her husband's will, may maintain a common-law action of dower for its recovery; the orphans' court, in such case, has no jurisdiction. Bradford v. Kent, 43 P. S. 474. Shaffee v. Shaffer,

5. The 11th section of the act of 8th April 1833, entitled "An act relating to 11 April 1848 § 11. last wills and testaments," shall not be construed to deprive the widow of the testaP. L. 587. tor, in case she elects not to take under the last will and testament of her husband, And also her share of her share of the personal estate of her husband under the intestate laws of this of the personalty. commonwealth; but that the said widow may take her choice, either of the bequest

or devise made to her under any last will or testament, or of her share of the per

sonal estate under the intestate laws aforesaid. (9),

6. In every case of a devise or bequest to a widow, which, by force of any last 29 March 1832 § 35. will and testament, or by operation of law, will bar such widow of dower, subject P. L. 200. to her right of election of dower, or of the property devised or bequeathed, it shall widow may be be lawful for the orphans' court, on the application of any person interested in the cited to make her estate of the decedent, to issue a citation, at any time after twelve months from the election. death of the testator, (r) to any such widow, to appear at a certain time, not less than one month thereafter, in the said court, to make her election (s) either to accept such devise or bequest in lieu of dower, or to waive such devise or bequest and take her dower, (t) of which election a record shall be made, which shall be conclusive on all parties. (u) If the widow shall neglect or refuse to appear upon such citation, then upon due proof to the court of the service thereof, the said neglect or refusal shall be deemed an acceptance of the devise or bequest, and a bar of dower, of which a.record shall be made, which shall be conclusive on all parties concerned.

P. L. 160.

7. The * court of common pleas of Philadelphia county, shall have all the 17 March 1845 § 3. power and jurisdiction of a court of equity in all cases of dower (v) and partition, within the city and county of Philadelphia.

P. L. 89.

lands lie in several counties.

8. All the courts of this commonwealth now having jurisdiction in matters of 20 Feb. 1854 § 1. partition, shall have power to entertain suits and proceedings, whether at law or in equity or otherwise, for the partition of real estate, or the recovery of dower or the Courts to have widow's third or other part, although the lands to be divided or recovered may lie jurisdiction where in one or more counties of this commonwealth: Provided, That such proceeding intended to embrace lands in more than one county, shall be brought only in a To be commenced county where a decedent, whose land is to be divided, had his domicil, or where in the county of the homestead, or larger part of the estate in value, shall be situated; and service the domicil. of process may be made by any sheriff, where real estate to be divided shall be Service of process. situated, or any defendant may be found; and exemplifications of the record may Exemplifications be filed in every county where such real estate shall be situated, in such court to be filed in other thereof as shall correspond in character of that of the court in which such proceeding may have taken place, and be received in evidence, with the like effect, as the Effect thereof. records of the court were filed; except that any exemplification of the proceedings in the supreme court shall be filed in the district court, or court of common pleas of the proper county.

counties.

tiff.

P. L. 845.

9. No action of dower, unde nihil habet, hereafter brought or now pending and 14 March 1865 § 1. undetermined in the courts of this commonwealth, shall abate by reason of the death of the plaintiff therein; but the same may be prosecuted by the executors Power not to abate or administrators of said plaintiff, who shall be substituted as plaintiffs therein on by death of plainthe record, on suggestion of the death of the plaintiff, to recover the annual value of the said plaintiff's estate in dower, or the rents, issues and profits thereof from Executors may rethe time of the decease of the husband, until the date of the death of the original plaintiff in such action.

cover arrearages.

P. L. 77.

10. In case any person has died, or shall hereafter die, leaving a widow, and last 20 April 1869 § 1. will and testament, and such widow shall elect not to take under the will, in lieu Interest of widow of dower at the common law, as heretofore, she shall be entitled to such interest in who elects not to

50 Ibid. 394. See infra 11. But having taken under the will, her right to dower cannot be revived by a voluntary breach of her tenure. Taylor v. Birmingham, 29 P. S. 306.

(q) This act does not apply to cases where the husband died before its passage. Hinnershitz v. Bernhard's Executors, 13 P. S. 518-21. But it includes the case of a will made before its passage; or where the marriage took place previously, the husband dying after. Melizet's Appeal, 17 P. S. 449. See Gallagher's Estate, 76 Ibid. 296.

(r) The act gives the widow twelve months to make her election, and before the expiration of that period, she cannot be called upon to do so. Anderson's Appeal, 36 P. S. 476.

(8) To enable her to make an election, she can compel the exhibition of a true inventory and fair account of the estate by the executor. Melizet's Appeal, 17 P. S. 449-50.

(t) That is, her dower at common law. Hinnershitz v. Bernhard's Executors, 13 P. S. 518. Paul's Executors v. Paul, 36 Ibid. 280.

(u) Her election to take under the will, although not made in the orphans' court, will estop her from claiming dower. Cauffman v. Cauffman, 17 S. & R.

16. Heron v. Hoffner, 3 R. 393. Light v. Light, 21 P. S. 407. But such election by matter in pais must be proved by clear and positive testimony, and must be shown to have been made by the widow with a full knowledge of her rights. Anderson's Appeal, 36 P. S. 476. See Bradford v. Kent, 43 Ibid. 474.

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(v) Where the husband died seised and possessed, an action of dower at common law cannot be maintained. Thomas v. Simpson, 3 P. S. 60. Taylor v. Birmingham, 29 Ibid. 306. Mussleman's Appeal, 65 Ibid. 480. See Bradford v. Kent, 43 Ibid. 474. Evans v. Evans, 4 Clark 478. Stilson v. Fought, 3 Luz. L. Obs. 118; and tit. 'Decedents' Estates." The widow may claim her dower by the common-law action, when the land is in the adverse possession of one who denies her right, or is not amenable to the process of the orphans' court. Evans v. Evans, 29 P. S. 277. And in equity, the personal representatives of a widow, entitled to dower in her deceased husband's lands, may have an account of the rents and profits thereof, although dower was not assigned in her lifetime, and no proceedings were instituted for that purpose. Paul's Executors v. Paul, 36 P. S. 270. See infra 9.

20 April 1869 § 1. the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this commonwealth.(w)

P. L. 77.

take under her

husband's will.

Ibid. § 3.

Orphans' court to award inquest.

8 June 1893. P. L. 356. Satisfaction, ex

tinguishment and

discharge of dowers, legacies and

other charges upon

land.

Publication of notice.

11. The orphans' courts of the several counties of this commonwealth,(x) in which the real estate of such decedent is situated, shall have power, on the application of the widow (y) or any one interested, to award an inquest to make partition of the same, and to decree the allotments thereof made, or in case of refusal to accept, to order a sale thereof, and secure the interest of the widow and all others interested, in the same manner and with like force and effect as is now provided by law in the partition of the real estate of persons dying intestate.(z)

12. Where any dower, legacy or other charge upon land shall have been paid, or wherever the legal presumption of payment shall exist from lapse of time and no satisfaction or release of such dower, legacy or other charge appears of record, it shall be lawful for the owner or owners of the lands bound by the said dower, legacy or other charge to apply by petition to the orphans' court of the county where the said lands are situate, setting forth the premises and also the name or names of the holder or holders of such dower, legacy or other charge, if known, and if not known then stating that fact, whereupon the said court shall direct the sheriff of the said county to serve a notice, stating the facts set forth in the petition, on the holder or holders of the said dower, legacy or other charge, if to be found in said county, and in case the parties aforesaid cannot be found in said county, then the said sheriff shall give public notice as aforesaid in one or more newspapers published within or nearest to said county once a week for four weeks successively prior to the then next term after the petition as aforesaid shall have been presented, requiring said parties to appear at said term and answer the petition as aforesaid, at which term, should any person or persons appear claiming to be the holder or holders of the said dower, legacy or other charge, the said court shall issue a citation on the person or persons so claiming, to proceed forthwith in the manner provided by the act of twenty-fourth February, one thousand eight hundred and thirty-four, section fifty-nine (P. L. 84), relating to legacies charged upon lands, to which it shall be lawful for any party to appear and defend, and in default of compliance with said citation, and in the event of the non-appearance of any person or persons to answer the petitions as aforesaid, the said court being satisfied of the truth of said petition, are hereby authorized and required to enter a decree that said dower, legacy or other charge be satisfied, extinguished and discharged, and said proceedings and decree, upon payment of the costs, shall be Proceedings to be recorded in the office of the recorder of deeds of said county, and thereupon the said dower, legacy or other charge shall be satisfied, extinguished and released, and all actions thereon forever barred.

Citation.

Decree.

recorded.

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1. The governor is hereby authorized and required to draw his warrant on the 31 March 1836 § 1. state treasurer, in favor of the president of the Pennsylvania Institution for the P. L. 328. instruction of the blind, for the sum of two hundred dollars(a) for every indigent Provision for edupupil of this commonwealth taught in the school of said institution, the said sum cation of the blind. to be paid according to the provisions of the 4th section of the act to which this

is a supplement; and so much of the said section as relates to the semi-annual payment, be and is hereby repealed.

25 May 1887. P. L. 271.

2. The time for which indigent pupils of this commonwealth may be taught in institutions for the instruction of the blind, at the expense of the commonwealth, is hereby extended to twelve years from the time of entering said institu- Term of instructions.(b)

II. Deaf and dumb.(c)

tion in institutions for the blind.

9 April 1844 § 1.

P. L. 221.

3. The governor be and he is hereby authorized and required to draw his warrant on the treasurer of the commonwealth, in favor of the president of the Pennsylvania Institution for the deaf and dumb, for the sum of one hundred and sixty Provision for edudollars (d) per annum, for every indigent deaf mute of this commonwealth, taught cation of deaf and at said institution, one-half of which said sum shall be paid at the expiration of six dumb.

(a) Increased to $300 per annum, by act 3 April 1872. P. L. 9.

(b) The act of 14 April 1838, § 15, P. L. 398, fixed the time at eight years.

(c) The act 20 June 1891, P. L. 371, amended by

the act 2 June 1893, P. L. 272, provides for the erection of a home for the training and speech of deaf children before they are of school age.

(d) Increased to $265 per annum; see act 3 April 1872. P. L. 9.

P. L. 221.

9 April 1844 § 1. months, and the other half thereof at the end of the year: Provided, That no pupil shall be educated at the expense of the commonwealth, under the age of ten Time that pupils years, nor over the age of twenty years, or for a longer period than six years: may be instructed. And provided also, That the annuity hereby granted shall continue in force for six years, from and after the first day of April 1844, and no longer; and the payment to be made pursuant to the provisions of this act, shall be limited by the appropriations made and hereafter to be made by law.

8 Feb. 1821 § 2.
7 Sm. 360.

What children may
be admitted.

4 April 1838 § 11.
P. L. 265.

Preference to be
given to children
of this state.

8 May 1875 § 1.
P. L. 157.

Provision for the
education of the
deaf and dumb.

Ibid. § 2.

To be part of the
common school

system.

See amendment

26 June 1895, P. L. 348, Supp. 2566.

31 May 1887.
P. L. 281.

4. Indigent children resident anywhere within the state shall be received into the school and asylum, maintained and educated gratuitously, so far as the funds of the institution will admit: Provided, That where more children shall be offered for the benefit of this institution than can be received at any one time, the president and directors shall so apportion their number among the several counties of this commonwealth, according to their representation (when application shall be made), that every county may equally receive the benefits of the same.

5. And provided also, That after the pupils now in the institution from other states shall have finished their education, preference shall always be given to the children of this commonwealth when there are not accommodations for all who may apply.

6. The board of school directors of any school district within this commonwealth having a population of more than twenty thousand inhabitants, and having within the limits of the city or township, in which said school district shall be, eight or more deaf mute children of proper age for attending school, are hereby authorized to open and maintain a special school for the education and training of such deaf mutes, either in sign language or articulation, as to such board of directors shall seem best for such children.

7. Any such school so organized by any such board of school directors shall be a part of the common school system of such school district, and shall be under the control of such board of school directors, in the same manner as the other schools in said district: Provided, That deaf mute children may be sent from any school district in the county in which such school shall be established, upon payment by such district, to the treasurer of the school board by which such school shall be maintained, (of) its proportionate share of the expense of maintaining said school: And provided further, That the expense of educating said deaf mute children in such school shall not exceed the sum of one hundred and fifty dollars for each child, during any one year.

III. Feeble-minded.

8. In cases where the limitation of seven years' maintenance of indigent inmates, as now provided for by law, shall be found inadequate, or where the disIdiotic and feeble- charge of the individual may work injury to society, the same may be retained in

minded children.

Annual expense.

Registration.

3 June 1893 § 1.
P. L. 259.

Home for feeble

minded children of
western Pennsyl-

lished.

the institution for an indefinite period, at the discretion of the board of directors
and the superintendent of said institution: Provided, The charge of maintenance
of this class of persons shall not exceed one hundred dollars per annum, per capita;
said money to be derived from the appropriations made biennially for the main-
tenance and support of beneficiary cases at said institution: And provided, All in-
dividuals, so continued, shall be registered with the board of public charities.(e)
9. The governor shall appoint five commissioners, who shall serve without com-
pensation, to select a site and build an institution for the accommodation of the
feeble-minded children of western Pennsylvania.

10. Said commissioners shall select, within four months of the date of their vania to be estab- appointment, a tract of land not less than five hundred or more than one thousand acres in extent, so located as to be most accessible by railroad facilities to the counties of western Pennsylvania, to wit:

Ibid. § 2. Duties of commissioners.

Location.

Ibid. § 3. Tract to be selected.

Site to be deeded
to the state.

Ibid. § 4.

Plans.
Buildings.

Ibid. § 5.

11. The tract of land so selected shall be good arable land, well adapted to the preservation of the health and the occupation and maintenance of the inmates of said institution, with an adequate supply of good water and natural facilities for drainage from the institution buildings, and the said tract of land so selected, and the cost thereof, shall be approved in writing by the governor and the state board of public charities before the purchase-money shall be paid, and the deed for the same shall be taken in the name of the commonwealth, but nothing herein contained shall prevent said commissioners from receiving a deed to the commonwealth in fee for any land donated for the purpose aforesaid.

12. The plans for said institution shall be prepared by said commissioners and approved by the state board of public charities. The buildings shall be of the best design for the construction of such institution, and without expensive architectural adornments, or unduly large or costly administrative accommodations, and no change shall be made in said plans of construction without the consent of the state board of public charities.

13. The said commissioners shall, with the approval of the governor and state Commissioners to board of public charities, have power to select a superintendent of construction and

(e) This act refers to idiotic and feeble-minded children.

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