Sarah Me. Ellermeyer, the wife of the appellant, died intestate and without issue on March 1, 1914, and the contention of her husband in the court below, renewed here, is that under Article II, Sec. 1, of the Act of April 1, 1909, P. L. 87, he is entitled to have set apart to him, to the aggregate value of $5,000, real estate of which she died seized. In making this claim he overlooks Article III, Sec. 1, of the same act, which provides that “when such intestate shall leave a husband, the real estate shall descend and pass as now provided by law, saving to the husband his right as tenant by the curtesy, which shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inherited.”

Appeal dismissed at appellant’s costs.