Sensible or silly?
When Frederick Kicherer of Jefferson County, Pennsylvania, wrote his will on the 6th of June, 1896, he made only one bequest to his wife Philippina: “I give and bequeath unto my beloved wife Phillippina Kicherer the sum of three hundred dollars ($300.00)…” He left everything else in his substantial estate to be divided among his children.1
And that started a chain of events that left reader Judy Kellar Fox scratching her head.
First, Frederick added a codicil — an amendment to the will2 — in October 1896, in which he said that if his farm or real estate wasn’t sold, then Phillippina “shall have room in house sufficient for her comfortable living” for “as long as she shall live.”3
Frederick then died on 16 February 1900; his will was admitted to probate on 21 February. On 13 March, an inventory of the estate valued it at more than $3,600, the personal property sale list was filed and a “List of Goods to Widow … amounting to ($)100.45” was also filed.4
And nearly a year later, on 16 January 1901, Philippina filed a document saying she didn’t want what Frederick left her in the will:
I, Philopena Kichererr, widow of the said Frederic Kichererr, deceased, do hereby waive the devise and bequest to me made under the will of said deceased, and elect to take my dower and share of his personal estate under the intestate laws of this Commonwealth.5
So, Judy wondered, what happened here? Did Philippina give up the $300.00 she was left in the will, only to get $100.45? What happened to the remainder of Frederick’s $3500+ estate?
Great question, and the answer starts back on the 4th of April 1797. That’s when the Pennsylvania Legislature first passed a law that
If any testator after the passing of this act, shall devise of bequeath to his wife, any portion of his estate, such devise or bequest shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband, … Provided always, That nothing in this section contained, shall deprive the widow of her choice either to dower, or the estate so devised or bequeathed.6
In English: if the husband left anything to the wife in his will, she got to choose between what she’d get under the will and what she’d get if she opted for dower. Dower, you’ll recall, was “the provision which the law makes for a widow out of the lands or tenements of her husband.”7 At common law, a wife had the right to a life estate in one-third of her husband’s real estate.8
But a widow under the 1797 statute only got to choose between the will and dower under specific circumstances. She had to have been lawfully married to the husband, and he had to have owned lands that were covered by dower rights.
The Pennsylvania Legislature then extended the rights of the widow by the intestate act of 1833. That provided that the widow would get a life estate in one-third of her husband’s real estate and one-third of his personal property absolutely. And § 11 of the act said that if the husband left anything to the wife in his will, she could choose between the inheritance under the will or what she would have gotten under this new statute if he hadn’t had a will at all.9
That concept — that the widow could choose between what she’d get under the will and what she’d get if her husband hadn’t left a will at all — was reaffirmed in § 11 of the Act of 11 April 1848 and § 1 of the Act of 20 April 1869. And, by law, the widow was given a whole year to make her election between the two and she had to be given a full and complete inventory of the estate so she’d know what the choices really meant.10
And, on top of those laws, § 5 of another law, the act of 14 April 1851, gave any widow the right to retain any real or personal property she wanted out of the estate, to a total value of not more than $300: “the Act of 1851 gives to a widow a right to property of her deceased husband amounting in value to $ 300, absolutely and in preference to creditors and heirs. … If personal property be appraised and set apart to her, and if the appraisement be approved by the Orphans’ Court, her ownership of it is complete.”11
Philippina here had clearly elected to take some of the personal property as the widow’s election. That’s what the $100.45 was for — property that was appraised and approved here by the Orphans’ Court.12
What she had to decide was whether to take what else she’d get under the will — or refuse it and take what the law would give her. And there’s one other little fact that undoubtedly played into her decision: there were minerals leases on the land.
As someone with only a life tenancy in the house under the will, she wouldn’t get any of the money from the leases. But as a life tenant in one-third of all the lands? Oh yeah. Pennsylvania law at the time was very clear on that point. A life tenant in land was entitled to the income from coal leases13 and from oil leases on the land.14
So the trade-off was this:
• (1) under the will, the specific personal property she chose (the $100.45 mentioned), $300 and the right to live in the house for life or at least as long as it wasn’t sold, but obviously with no right to say how the house, land, etc. was managed and no right to any of the profits of the land; or
• (2) setting the will aside, the specific personal property she wanted, plus one-third of the personal property, plus a life estate in one-third of the land, including the right to say what was done with the land and to have the income from the coal and oil leases on the land.
This was a no-brainer. Philippina made the right choice. No wonder that, when she died some nine years later, her estate was worth almost as much as Frederick’s had been.
SOURCES
- Jefferson County, Pennsylvania, Will Book 3: 70, Last Will and Testament of Frederick Kicherer (1896); Clerk of Orphans’ Court, Brookville, Pennsylvania; digital image, “Pennsylvania, Probate Records, 1683-1994, Jefferson County,” FamilySearch.org (https://familysearch.org/ : accessed 13 Feb 2013). Note that Philippina’s name is spelled several different ways in the documents. For the sake of consistency, the spelling “Philippina” is used when it’s not a direct quote. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 216, “codicil” (“A testamentary disposition subsequent to a will, and by which the will is altered, explained, added to, subtracted from, or confirmed by way of republication, but in no case totally revoked”). ↩
- Jefferson Co. Will Book 3: 70. ↩
- Jefferson County, Pennsylvania, Register’s Docket 4: 25, Frederick Kicherer; Register of Wills and Clerk
of Orphans’ Court, Brookville, Pennsylvania; digital image, “Pennsylvania, Probate Records, 1683-1994, Jefferson County,” FamilySearch.org (https://familysearch.org/ : accessed 13 Feb 2013). ↩ - Jefferson County, Pennsylvania, Election of Philopena Kicherer to take under the Law, Frederick Kicherer Estate; Register of Wills and Clerk of Orphans’ Court, Brookville; digital copy provided to the author by Judy Kellar Fox. ↩
- Act of 4 April 1797, § 10 in John Purdon Jr., An Abridgment of the Laws of Pennsylvania (1700-1811) (Philadelphia : Farrand, Hopkins, Zantsinger & Co., 1811), 107; digital images, Google Books (http://books.google.com : accessed 13 Feb 2013). ↩
- Black, A Dictionary of Law, 393, “dower.” ↩
- William Blackstone, Commentaries on the Laws of England, Book the Second : The Rights of Things (Oxford : Clarendon Press, 1766), 129; html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu : accessed 13 Feb 2013). ↩
- Christopher Fallon, The Law of Conveyancing in Pennsyvania (Philadelphia : Johnson & Co., 1902), 566-567; digital images, Google Books (http://books.google.com : accessed 12 Feb 2013). ↩
- Ibid., 567-568. See also Purdon, An Abridgment of the Laws of Pennsylvania (1700-1811), 107. ↩
- Detweiler’s Appeal, 44 Pa. 243, 245 (1863). ↩
- Jefferson County, Pennsylvania, Orphans’ Court Docket 10: 229, Goods to Widow, Frederick Kicherer Estate; Register of Wills and Clerk of Orphans’ Court, Brookville, Pennsylvania. ↩
- Eley’s Appeal, 103 Pa. 303 (1883). ↩
- Woodburn’s Estate, 138 Pa. 606 (1891). ↩
I have one of these cases, the second wife of one of my ancestors. The will provides for the “widder” until the youngest child “gets to be 18” (yes, the will is written in Alabamese!) After this point, there is no further mention of her in the will, just the disposition of his estate among his 23 children. So, she claimed her dower. It seems she did so with the connivance of the son (of the first wife) who was the executor. At least, he didn’t file any sort of objection. She took her third of the land out of the middle! The diagram of the land division is right there in the probate records. This will was proved 14 Dec 1857, Madison Co AL. The may died 16 April 1857, Madison Co AL. I have no idea why it took so long to file the will. I only know that Sarah Wood Salmon Rogers got her fair share and although a lot of paperwork was involved, nobody seems to have suggested she should settle for less.
The executor didn’t have to connive with her, Jo — the law said she had the right to dower.
JoF, as for the widow’s taking her “third of the land out of the middle” — usually the Court having jurisdiction over the estate would appoint persons to go on the land and determine how to allocate the dower right in such a way that the land’s value would be retained should any other heirs wish to sell their shares. Sometimes the “viewers” would conclude that division could not be made so as not to adversely affect value of the property and in that case the Court could order the land to be sold and proceeds divided as the law directed. Remember that a lifetime interest in dower may seem temporary, but could last for decades. I can’t comment on your instance in particular, but in my experience the dower land would include the family domicile, so would often be a chunk out of the middle.