Appeal, 358 | Pa. | Jan 13, 1932
Argued January 13, 1932. John J. Bridgeford, on May 19, 1919, became the owner in fee of the real estate which is involved in this litigation. At that time and up until the time of his death, in October, 1926, he was the lawful husband of Mary Bridgeford, plaintiff in this action. One of their children survived him. The purchase price of the property was $8,000, subject to a mortgage of $4,000, then a lien thereon. On the same day on which he acquired title Bridgeford further encumbered the property by creating an additional mortgage on it of $3,000. Also on the same day he conveyed the property to Helen C. Bridgeford, subject to the two mortgages. She was described in the deed as the wife of John J. Bridgeford. Plaintiff did not join in the conveyance. On September 29, 1921, Helen C. Bridgeford conveyed the property to *571 the defendants clear of encumbrance. John J. Bridgeford joined with her in the conveyance as her husband.
On November 25, 1914, John J. Bridgeford and Helen C. Bridgeford, after securing a license therefor, went through a marriage ceremony which was performed by a priest in a Philadelphia church. They lived together as husband and wife until he died; and they had three children, who were baptized as their lawful issue in the same church. Helen C. Bridgeford could not be found at the time of the trial and therefore her testimony was not taken. No improvements were made to the property by John J. Bridgeford or Helen C. Bridgeford. Subsequent to the date of the conveyance to the defendant and prior to John J. Bridgeford's death, the defendants demolished and removed the buildings then on the land and erected another building thereon.
At the trial, as a result of the agreement of counsel, the only question submitted to the jury was whether the plaintiff is entitled to common law dower or statutory rights (not which thereof) in the property in question, which they determined she is. The agreement provided that if the jury so found, the court should thereafter determine the exact amount of her interest. Accordingly the court decided that the plaintiff should recover against the defendants a one-half absolute or fee simple interest in the premises in question, according to the value of the land at the time her interest is assigned to her, but without any benefit to her of improvements which have been erected thereon since the alienation of the property by her husband and less her proportionate part of the mortgages previously encumbering the property in the amount of $7,000 and without any damages, mesne profits or costs.
From the judgment so entered plaintiff appeals, contending that she is entitled (1) to the advantage of the improvements placed on the land by defendants, which were there when her husband died; (2) that she is not chargeable with any part of the mortgages which were *572 on the property when he aliened it; (3) that she is entitled to damages for detention, interest, mesne profits and costs, and this whether or not she made demand for the assignment of her dower; (4) that she is entitled, in addition to the interest in the property which the law gives her, to her widow's exemption.
We will first dispose of the last claim, which is stated, but not argued, in appellant's brief. This is not a proceeding to set aside to her the exemption allowed by law, but a writ of dower. Her exemption, if she had any claim to it, could not be adjudicated to her in this action. Under section 12 of the Fiduciaries Act of June 7, 1917, P. L. 447, 20 P. S., section 471, it is provided that such exemption comes out of property belonging to the decedent's estate and as the decedent long before his death had parted with all his interest in the land by the conveyance to his "second wife," it formed no part of his estate. Certainly the "estate" of decedent is "a description having no application to property in which he divested himself of all estate prior to his death": Borland v. Nichols,
A widow's "dower" rights may arise in two separate situations which are fundamentally different, both in law and in fact: (1) where the husband dies seized of the land; (2) where the husband has aliened the land during his lifetime, without his wife joining in the conveyance. The present case is of the latter class.
In cases where the husband aliens in his lifetime without his wife's joinder in the conveyance, the grantee in many instances is not in a position to know with certainty whether his grantor has a wife living, or, where a putative wife signs the deed, whether she is so lawfully. In the instant case, title came to the defendants from the reputed wife to whom the prior deed had been made and there was nothing to indicate to them that she was *573 not the lawful spouse of her husband; indeed, everything indicated that she was. Defendants paid her full value for the land. Consequently a grantee under such circumstances should not be made to suffer beyond the clear requirements of the law.
The plaintiff is not entitled to the advantage of the improvements placed on the land by defendants which were there when her husband died. Where the husband dies seized, survived by his wife and one child, all that the wife can claim is one-half of the land itself in the condition in which it was at the death of her husband, but if after his death and before the assignment of dower, the heir makes improvements, the widow's claim includes the improvements to the estate according to its value at the time dower is assigned to her "because it was the folly of the heir to make improvements on land which he knew to be subject to dower: Co. Litt., 32a, section 36. The law is different, however when the husband aliens the land during coverture, for there the wife shall derive no advantage from any improvements made by the alienee": Thompson v. Morrow, 5 S. R. 289, 290; Benner v. Evans, 3 P. W. 454; Shirtz v. Shirtz, 5 Watts 255" court="Pa." date_filed="1836-06-15" href="https://app.midpage.ai/document/shirtz-v-shirtz-6311596?utm_source=webapp" opinion_id="6311596">5 Watts 255; Shupe v. Rainey,
Plaintiff is chargeable with her share (one-half) of the mortgages which were on the property when her husband aliened it. In this connection, it is to be noted that the mortgages at this time amounted to $7,000. When Helen C. Bridgeford, her putative husband joining, conveyed to defendants, they did so clear of encumbrances, but we are not dealing with the property at that time, but at the time when John J. Bridgeford parted with his interest and that was when he conveyed it to his "second wife" Helen. At that juncture it was subject to the mortgages. A widow's dower cannot be broader than her husband's rights on which it depends: 19 C. J., pages 460, 489. Her inchoate interest is subject to mortgages on the land when he gets title and which he himself creates, whether she joins in them or not. If such mortgages are foreclosed, her dower is lost: Scott v. Crosdale, 2 Dallas 127; Mitchell v. Mitchell,
Plaintiff is not entitled to damages for detention, interest, mesne profits or costs irrespective of whether she made demand or not. The Statute of Merton (20 Henry III, chapter 1, Robert's Digest of Select British Statutes, *575 2d edition, page 179), which is the sole authority for such recovery, applies only where the husband died seized (Benner v. Evans, 3 P. W. 454), and here he did not so die. Costs can be given only where damages are recovered under the Statute of Gloucester (6 Edw. I, chapter 1, Robert's Digest, page 107), and as no damages are recoverable neither are costs: Benner v. Evans, supra.
Appellant contends that the Intestate Act of June 7, 1917, P. L. 429, changed all the prior existing law on the matter before us and has made inapplicable all the earlier decisions. With this broad challenge we cannot agree. In Merrick v. DuPont,
The judgment of the court below is affirmed.