Opinion by
Mr. Justice Mestrezat,
The facts material to our disposition of the case may be briefly stated. John M. Powell died April 19, 1901, testate, leaving a widow, five children by his first wife, and two children by the last wife. In his will, probated July 24, 1901, he disposes of his residuary estate as follows: “ On my death it is my will expressly declared that all of my estate then remaining be divided into six equal shares or parts, and I hereby give devise and bequeath to my beloved wife Elizabeth A. Powéll one of those equal shares or parts being one-sixth of my estate.” The other five-sixths of his residuary estate he [522]*522divides equally among his five children by his first wife. At the date of the will, April 5, 1895, Helen and Ruth, the two children by his last wife, had not been born and no provision was made for them therein.
The decedent was at first supposed to have died intestate, and letters of administration on his estate were granted to his brother. About three months after his death, the will was discovered and probated. On the day of the probate, the widow executed the following paper: “I, Elizabeth Ann Powell, widow of John M. Powell, deceased, do hereby signify my desire and intention to accept under the provisions of the will of John M. Powell as probated July 24, 1901. It being understood that all the children, including Helen and Ruth, are to share equally with me in the estate each to receive one-eighth of the estate being convinced that this was the desire of my husband, I hereby now accept the provisions of the will instead of my share under the intestate laws of Perm a., subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.” Notwithstanding this paper, the widow on October 23, 1901, gave the executor notice that she declined to take under the will. The auditor appointed to distribute the estate found that the widow “signed the paper with a full understanding of all her legal rights as the widow of John M. Powell, and that she was fully informed as to the nature, kind and amount of the estate, real and personal, of John M. Powell, deceased.” The auditor held that the widow was, therefore, bound by her election and awarded her one-eighth of the fund for distribution. The orphans’ court reversed the auditor, holding that the widow was not bound by the election made by the paper of July 24, 1901, because it was made under a misapprehension of her rights.
We are satisfied, after an examination of the testimony, that the learned counsel for the estate advised the widow fully as to her rights and the amount of her deceased husband’s estate prior to her signing the paper of July 24, 1901. We do not, however, regard the fact whether she was so advised or [523]*523not as material to the disposition of this appeal. In our judgment, the paper in question is not an election to take under or against the will as contemplated by the statute, and hence does not prevent her from asserting her statutory rights in her deceased husband’s estate.
A married woman has an interest in the estate, real and personal, of her husband of which she cannot be deprived except by her own act. While he may dispose of his property by will, his wife’s interest therein cannot be defeated by such testamentary disposition. On the death of the husband, intestate, the statute gives a specific portion of his estate, after the payment of debts, to his widow. If he die testate, his widow may accept the provisions made for her in his will or she may renounce them and elect to take her statutory share or portion of his estate. Her right of election is personal and can be exercised only by herself. If she fail to make an election within twelve months after her husband’s death, she may be cited by the court to do so. While the privilege or right of election between a testamentary prolusion and her statutory interest in her deceased husband’s estate is conferred upon the widow, she is limited to a choice between the two provisions. She may acquiesce in or consent to the provision made by her husband for her and receive such provision in lieu of her statutory interest in the estate; or she may renounce the testamentary disposition and assert her right to the interest in the estate given her by the law. There is no other or middle course for her to pursue. She cannot accept a part of the devise or bequest in her favor and demand a part of the statutory provision made in her behalf. She cannot accept the provisions of the will on any condition which would change its terms. She cannot elect to accept the provisions of the will on condition that she shall receive a portion of the testator’s estate different from that devised or bequeathed her in the will. She has but one choice between the two alternatives: the provisions of the will or her statutory interest in the estate. Neither does her right of election depend upon the quantum of the estate which she may receive under the will or under the statute, and it is not [524]*524affected by the interests which the other beneficiaries of the estate may receive. As said in Cunningham’s Est., 137 Pa. 621, 628: “She must make her choice, and it is will or no will. . . . The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband’s disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and cannot coexist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or omission of her in the will, or on the quantum of benefits she receives or renounces under it.”
In the present case, it is conceded that there was no implied election, but it is contended that the paper of July 24, 1901, signed by the widow, was an express election to take under her husband’s will. If, therefore, this paper is not effective as an election to take under the will, the widow is entitled under her election of October, 1901, to her statutory interest in her husband’s estate.. As to Helen and Ruth, the children born after the date of the will, the testator died intestate: Grosvenor v. Fogg, 81 Pa. 400; Wilson v. Ott, 160 Pa. 433; and they are “entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if he (the testator) had actually died without any will:” Act of April 8, 1833, sec. 15, P. L. 249. So far, therefore, as those two children and their interests in the estate are concerned, the testator died intestate and they are each entitled to the one-seventh of his personal property absolutely and to the one-seventh of his realty, subject to the widow’s dower. The failure to provide for the pretermitted children revokes the will pro tanto. They do not take by virtue of its provisions, and their statutory interest in the estate is not affected by it.
Turning now to the testator’s will it will be observed that he made no provision for his after-born children, but divided his residuary estate into six equal parts, giving one of those parts to his widow and the other five parts to the five children by his first wife. Owing to the fact that the residuary estate' [525]*525will be diminished to the extent of the interest of the after-born children therein, it is apparent that the widow cannot receive the one-sixth of the whole estate given her in the will.
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Opinion by
Mr. Justice Mestrezat,
The facts material to our disposition of the case may be briefly stated. John M. Powell died April 19, 1901, testate, leaving a widow, five children by his first wife, and two children by the last wife. In his will, probated July 24, 1901, he disposes of his residuary estate as follows: “ On my death it is my will expressly declared that all of my estate then remaining be divided into six equal shares or parts, and I hereby give devise and bequeath to my beloved wife Elizabeth A. Powéll one of those equal shares or parts being one-sixth of my estate.” The other five-sixths of his residuary estate he [522]*522divides equally among his five children by his first wife. At the date of the will, April 5, 1895, Helen and Ruth, the two children by his last wife, had not been born and no provision was made for them therein.
The decedent was at first supposed to have died intestate, and letters of administration on his estate were granted to his brother. About three months after his death, the will was discovered and probated. On the day of the probate, the widow executed the following paper: “I, Elizabeth Ann Powell, widow of John M. Powell, deceased, do hereby signify my desire and intention to accept under the provisions of the will of John M. Powell as probated July 24, 1901. It being understood that all the children, including Helen and Ruth, are to share equally with me in the estate each to receive one-eighth of the estate being convinced that this was the desire of my husband, I hereby now accept the provisions of the will instead of my share under the intestate laws of Perm a., subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.” Notwithstanding this paper, the widow on October 23, 1901, gave the executor notice that she declined to take under the will. The auditor appointed to distribute the estate found that the widow “signed the paper with a full understanding of all her legal rights as the widow of John M. Powell, and that she was fully informed as to the nature, kind and amount of the estate, real and personal, of John M. Powell, deceased.” The auditor held that the widow was, therefore, bound by her election and awarded her one-eighth of the fund for distribution. The orphans’ court reversed the auditor, holding that the widow was not bound by the election made by the paper of July 24, 1901, because it was made under a misapprehension of her rights.
We are satisfied, after an examination of the testimony, that the learned counsel for the estate advised the widow fully as to her rights and the amount of her deceased husband’s estate prior to her signing the paper of July 24, 1901. We do not, however, regard the fact whether she was so advised or [523]*523not as material to the disposition of this appeal. In our judgment, the paper in question is not an election to take under or against the will as contemplated by the statute, and hence does not prevent her from asserting her statutory rights in her deceased husband’s estate.
A married woman has an interest in the estate, real and personal, of her husband of which she cannot be deprived except by her own act. While he may dispose of his property by will, his wife’s interest therein cannot be defeated by such testamentary disposition. On the death of the husband, intestate, the statute gives a specific portion of his estate, after the payment of debts, to his widow. If he die testate, his widow may accept the provisions made for her in his will or she may renounce them and elect to take her statutory share or portion of his estate. Her right of election is personal and can be exercised only by herself. If she fail to make an election within twelve months after her husband’s death, she may be cited by the court to do so. While the privilege or right of election between a testamentary prolusion and her statutory interest in her deceased husband’s estate is conferred upon the widow, she is limited to a choice between the two provisions. She may acquiesce in or consent to the provision made by her husband for her and receive such provision in lieu of her statutory interest in the estate; or she may renounce the testamentary disposition and assert her right to the interest in the estate given her by the law. There is no other or middle course for her to pursue. She cannot accept a part of the devise or bequest in her favor and demand a part of the statutory provision made in her behalf. She cannot accept the provisions of the will on any condition which would change its terms. She cannot elect to accept the provisions of the will on condition that she shall receive a portion of the testator’s estate different from that devised or bequeathed her in the will. She has but one choice between the two alternatives: the provisions of the will or her statutory interest in the estate. Neither does her right of election depend upon the quantum of the estate which she may receive under the will or under the statute, and it is not [524]*524affected by the interests which the other beneficiaries of the estate may receive. As said in Cunningham’s Est., 137 Pa. 621, 628: “She must make her choice, and it is will or no will. . . . The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband’s disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and cannot coexist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or omission of her in the will, or on the quantum of benefits she receives or renounces under it.”
In the present case, it is conceded that there was no implied election, but it is contended that the paper of July 24, 1901, signed by the widow, was an express election to take under her husband’s will. If, therefore, this paper is not effective as an election to take under the will, the widow is entitled under her election of October, 1901, to her statutory interest in her husband’s estate.. As to Helen and Ruth, the children born after the date of the will, the testator died intestate: Grosvenor v. Fogg, 81 Pa. 400; Wilson v. Ott, 160 Pa. 433; and they are “entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if he (the testator) had actually died without any will:” Act of April 8, 1833, sec. 15, P. L. 249. So far, therefore, as those two children and their interests in the estate are concerned, the testator died intestate and they are each entitled to the one-seventh of his personal property absolutely and to the one-seventh of his realty, subject to the widow’s dower. The failure to provide for the pretermitted children revokes the will pro tanto. They do not take by virtue of its provisions, and their statutory interest in the estate is not affected by it.
Turning now to the testator’s will it will be observed that he made no provision for his after-born children, but divided his residuary estate into six equal parts, giving one of those parts to his widow and the other five parts to the five children by his first wife. Owing to the fact that the residuary estate' [525]*525will be diminished to the extent of the interest of the after-born children therein, it is apparent that the widow cannot receive the one-sixth of the whole estate given her in the will. As suggested above, each of those two children take one-seventh of the personalty and one-seventh of the realty, subject to the widow’s dower. The residuary estate, therefore, is diminished to that extent; and the amount received by the widow will necessarily be less than that given her by the will. If, therefore, she had accepted unconditionally the provisions of the will in lieu of her statutory interest in her husband’s estate, she could not receive absolutely the one-sixth of her husband’s entire estate given her by the will.
But aside from other considerations, the paper of July 24, 1901, is not an election to take under the testator’s will. This is apparent on the face of the paper itself. Referring to its contents it will be observed that in the first part the widow signifies her “desire and intention to accept under the provisions of the will.” This is not an absolute, positive election, but a simple declaration of a desire and an intention to accept' the testamentary provisions made for her. The next sentence in the paper discloses a conditional acceptance, viz.: that if her two daughters are permitted to share equally with her and the other children in the estate she will accept the provisions of the will. That is, if her daughters, Helen and Ruth, each receive one-eighth of the estate, she will likewise accept one-eighth of the estate “instead of my share under the intestate laws of Penna.” The last clause of the paper makes her acceptance of the provisions of the will distinctly “subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.” The effect of the paper, therefore, is that the widow will accept one-eighth of the. residue of her husband’s estate, provided her two daughters, Helen and Ruth, each receives a like share. This is a condition which cannot be attached to a valid acceptance. Beyond that, and absolutely destructive of the acceptance, is, as shown by the paper itself, that she does not accept the one-sixth of the residue of the testator’s estate which is given her [526]*526by the will, but the one-eighth of the estate which is not given her by the will. Whether she receives more or less by accepting the one-eighth instead of one-sixth share of the estate is wholly immaterial so far as the validity of her acceptance of the provisions of the will is concerned. The statute does not give her the right to change the distribution made by the testator nor to make a new or other will for him. It confers upon her simply the right to say “yea” or “nay,” when called upon to elect whether she will accept the provisions of the will or her statutory interest in the decedent’s estate. In the paper of July 24, 1901, she has not exercised her election as permitted by the statute, but attempts to distribute the estate in equal shares between herself and the seven children of her husband, thereby giving each the undivided one-eighth part of the estate, instead of accepting the provisions of the will which gives her the one-sixth part of the estate. That this cannot be done is clear on reason, and is distinctly ruled in Cunningham’s Est., 137 Pa. 621.
The paper signed by the widow is not a family arrangement, nor an agreement of any kind between the widow and other parties, as no other party is named in it or consents to it by attaching his signature. It cannot be considered a family agreement in any aspect of the case, but must be accepted simply as an abortive attempt on the part of the widow to accept the testamentary disposition made for her in her husband’s will. Unless we hold that a widow may, by her acceptance, make a distribution of her husband’s estate contrary to and different from that made in his will, we must declare the paper of July 24, 1901, inoperative and ineffective as an acceptance by his widow of the provisions of John M. Powell’s will. If the paper had been intended as a family agreement, it should have so declared, and should have been signed by all the interested parties. The widow then, like the other beneficiaries, would have been bound by its terms, and the estate would be distributed in accordance therewith.
From what has been said it follows that the attempted acceptance by the widow in the paper of July 24, 1901, is in[527]*527operative, and that her election on October 23, 1901, entitled her to her statutory interest in her husband’s estate.
The decree of the court below is affirmed.