Appeal of Heffner

119 Pa. 462 | Pa. | 1888

Opinion,

Mr. Justice Paxson :

, In Johnson’s Appeal, 114 Pa. 142, we said: “We desire to say also, in order to avoid misapprehension in the future, that it is at least doubtful whether the petition filed in this case upon which the sale was had, sets out sufficient facts to give the court jurisdiction. It is admitted that the petition was filed under the act of 1853. Indeed I do not know of any other act which gives the Orphans’ Court the power to order a private sale of the real estate of a minor. Said act provides: ‘ In all cases when real estate shall have been acquired by descent or last will, the Orphans’ Court, and in all other cases the Court of Common Pleas, of the respective counties of this commonwealth, shall have jurisdiction to decree the sale of ... . such real estate.’ The petition in this case is of the most informal character, and does not set out any explanation of the title, nor is there even an averment that the title of the minors was derived by descent or last will, which is absolutely essential to give the court jurisdiction. Such a loose way of dealing in matters affecting the title to real estate is not to be commended, and may lead to serious trouble hereafter. ”

Johnson’s Appeal was decided upon other grounds, and the language quoted was not essential to the decree in that case. It was intended merely as a note of warning to the profession, and the case in hand shows how badly it was needed.

This was an appeal from the decree of the Orphans’ Court ordering the sale of certain real estate. It was conceded that the proceeding was under the act of April 18,1853, commonly called the Price Act. The petition does not set forth that the petitioner has any interest in the property which he asks to have sold. It is true it contains one short extract from the will of Plenry Heffner, and alleges that he is a son and devisee of the said testator, but for aught that appears the land in question may have been devised to some one else. Nor is there any description of the land to be sold, and we can only gather inferentially from the petition that it ever belonged to the testator. In a separate paper, filed by some of the hens concurring in the application, there is a brief description of the property and it is alleged to be the estate of the testator, but this will not cure the entire absence of any averment of interest on the part of the petitioner. It also appears that some of the parties have withdrawn their consent and protest against the sale.

While a decree under the act of 1853 possesses great curative powers in a case in which the court had jurisdiction, there should be sufficient facts set forth in the petition to confer such jurisdiction. To proceed in this loose way is to peril the title to real estate, and we cannot sanction a practice so entirely informal.

I have before said that no copy of the will of Henry Heffner is attached to the petition and made a part thereof, as is always the case where such proceedings are conducted with any kind of regularity. We learn, however, from the answer of Benjamin Heffner, a son and legatee named in the will, “ that the tract of land for the sale of which an order of the court is prayed for, is iron ore land and that iron ore was heretofore taken from the said premises in considerable quantity, and that Henry Heffner, the testator, directed in his will that said tract of twenty-four acres of land should not be sold until the youngest of his children arrived at the age of twenty-one years, because it was his wish and will that the same might remain as part of his estate for that length of time, as he believed that in the time intervening, further examinations and explorations for the discovery of iron ore might be made, and in case of finding a body of ore believed to be on said premises, that the benefit thereof might accrue to his estate. That said tract of land at this time brings a reasonable annual rental. ”

It is manifest, from the scraps of this will before us, that the testator positively directed that this real estate should not be sold until his youngest child should arrive at the age of twenty-one years. In the meantime it is to remain in the hands of his executors. His prohibition of a sale at an earlier period was obviously for a purpose. In the absence of the will itself, we cannot say that a sale can be now made “ without injury or prejudice to any trust, charity, or purpose for which the same shall be held. ”

We are of opinion that the order of sale was improvidently granted.

The decree is reversed; the order of sale is set aside, and the petition dismissed at the costs of the petitioner.