Spencer's Appeal

27 Pa. 218

Opinion

The opinion of the court was delivered by

Lowrie, J.

We think that the learned President of the Orphans’ Court decided this cause rightly. The Act of 1851, allowing a widow to take property to the value of $300 out of her deceased husband’s estate is. plainly a restriction on the remedies theretofore existing in favour of creditors. It is therefore a restriction or qualification of any liens acquired by operation of law against his estate after the passage of the -act, except* so far as is excepted by the act.

It is supposed that his waiver of any right of exemption alters the case; but we do not think so. His waiver of a privilege granted by law to himself cannot affect a right granted to another. It puts the creditor in the same position which he would have . occupied if the husband had had no exemption to be waived. And surely this provision in favour of the widow might have been enacted and enforced, even if there had been no exemption at all in favour of the debtor himself. The creditor might have divested his whole estate in his lifetime; but not having done so, the prospective provision in favour of the widow comes into operation, and restricts his remedy so far as to prevent it from interfering with the right granted to her.

Decree affirmed at the appellant’s costs., and the cause is remitted.