The opinion of the Court was delivered by
Knox, J.Under the Act of 14th April, .1851, upon demand made, it is the duty of the personal representative to have appraised and set apart of the real or personal estate of their decedent, property to the value of $300, to remain with the widow *256for the use of herself and family. So much of the estate as is thus set apart, is withdrawn from the general administration, and becomes the property of the widow for the aforesaid purpose, as soon as it is appraised and set apart, subject, however, to the approval of the Orphans’ Court.
Where the administrator refuses or neglects, upon request made, to allow the property claimed to be appraised and set apart for the widow, she may have an action against him at once without waiting for the settlement of the estate, and the general distribution of its effects. Yet she cannot maintain trespass; for the possession of the personalty is in the personal representative, and the widow has neither a general nor special property in any particular goods until after the election and appraisement. Her remedy is a special action on the case, unless the estate has been sold and converted into money by the administrator; when, at her option, she can maintain assumpsit for money had and received to her use.
Judgment affirmed.