Dissenting opinion
Ladner, J.,dissenting. — I dissent for the reasons appearing in the following extracts of my supplemental adjudication:
As stated in my original adjudication, the matter comes before me on a petition filed December 18, 1942, entitled, “Petition for exemption of child of decedent”. Petitioner is an adult son of the deceased widow and is neither incompetent nor suffering from any incapacity. This petition, filed with the court in banc, was referred to the auditing judge to dispose of in connection with the audit of the decedent’s account.
At the hearing thereon, Mr. Floge, on behalf of Schnader & Lewis, attorneys for the accountant and trustee under the will of the decedent, objected to the petition being allowed. He contended that, whereas under the old Act of April 14, 1851, P. L. 612, sec. 5, a child could claim the exemption out of a widowed mother’s estate (see Himes’ Appeal, 94 Pa. 381 (1880), Appeal of Wanger, Guardian, 105 Pa. 346 (1884), Deemer’s Estate, 6 Dist. R. 30 (1896), Hoffman’s Estate, 11 Dist. R. 551 (1901)), this is no longer so because the Fiduciaries Act of June 7, 1917, P. L. 447, sec. 12, 20 PS §471, has changed the language of the older act, now expressly repealed; that there is no decision similarly interpreting the new act. I find that the old Act of 1851 with its amendments and supplements was expressly repealed by the Fiduciaries Act of 1917, sec. 63. The repealed act provided that “the widow or the children of any decedent dying within this Common*686wealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of three hundred dollars”, etc. The peculiar language used by these acts was readily susceptible of interpretation that two parallel rights were given, one to the widow and one to the children. Of course, the widow could only be the widow of a male decedent, but the children could be children surviving either a father or mother. This gave some ground to the earlier decisions which rule that a widow’s children may claim the exemption out of a widowed mother’s estate. However, section 12 (a) of the Fiduciaries Act of 1917 reads differently. It reads “The widow, if any, or if there be no widow, or if she has forfeited her rights, then the children forming part of the family of any decedent . . . may retain or claim . . . property ... to the value of five hundred dollars . . .”, etc. Under this act the children are given no independent right but their right would seem dependent and subordinate to the widow’s exemption and conditioned on' her death or her forfeiture of rights. The children are given no absolute right but a right predicated on the widow’s nonexistence or failure. They take only in the alternative, that is to say, in event of nonexistence or incapability of the widow. It would seem therefore too plain for argument that the words “forming part of the family of any decedent dying” can mean nothing other than a male decedent, the father of the children.
The change in phraseology (Act of 1917) indicates a fixed purpose, so cases under prior acts are no longer authorities. The language of the Act of April 14, 1851, P. L. 612, sec. 5, hereinbefore quoted, strange as it may seem, did provoke discussion (King’s Appeal, 84 Pa. 345; Himes’ Appeal, 94 Pa. 381); and the words “children of any decedent” were held to include a child of a wife deserted by her husband, though the opinion itself speaks of her as a widow. As she might answer *687by description the words “any decedent”, this is the only ground upon which the opinion in Himes’ Appeal, supra — and at variance with King’s Appeal, supra— may be upheld. The ruling of the lower court was a sympathetic one. The act probably did not justify it. The circumstances suggested legislative action and an amendment of the law. In Hoffman’s Estate, 11 Dist. R. 551, there is a similar ruling without extended discussion. The decision is really rested on Himes’ Appeal, supra, though Judge Solly drew attention to the fact that in King’s Appeal, 84 Pa. 345, Mr. Justice Mercur had previously interpreted the act as applicable to the estate of a male decedent and not to that of a wife. In this case the decedent was a widow and not a deserted wife. The decision in Wanger’s Appeal, 105 Pa. 346, is on similar lines.
Prior to the Fiduciaries Act of 1917 I am informed that this court followed Himes’ Appeal, supra, but since that act I find no cases in point nor do counsel in their briefs refer to any.
While it is true that adult children have been permitted to claim an exemption out of a father’s estate merely because they occupied the same household (see Reed’s Estate, 41 D. & C. 89), there seems to be little moral justification for upholding such claims except where the adult child is an incompetent or is incapacitated. It permits one child to get an advantage over the other merely from the accident of happening to occupy the same house with the deceased parent, and this frequently in the face of a will equally distributing the estate among all children. There should also be considered the fact that in some estates a claim by an adult child, fully capable of his own support, is thus interposed ahead of funeral expenses and other creditors. Legislation is greatly needed to restrict a child’s exemption to cases where the children are minors or are otherwise incapacitated, or suffering from some form of incapacity, mental or physical, rendering them *688unable to support themselves. In my opinion the petition for the adult child’s exemption in this case out of the widowed mother’s estate should be refused.