92 Pa. 365 | Pa. | 1880
delivered the opinion of the court, January 5th 1880.
From the evidence in this case, there is no doubt about the rectitude of the verdict. Isabella Hurst, widow of Henry Hurst, took possession of the property in dispute some forty-three years ago;
That she so entered, is rendered probable from the fact, that of property of her husband, in other counties than Crawford, she claimed no dower, but permitted his heirs to divide it among themselves as they saw' fit; besides this, however, there was positive proof of such an arrangement. Whatever, therefore, "might have been the effect of the partition, there was some evidence to submit to the jury, that she held as owner of the fee and not merely for life.
Nevertheless, if the decree in partition was valid and binding upon the parties, if thereby a life estate only, vested in Mrs. Hurst, it would be all but conclusive evidence, that she not only entered but continued, during her life, to hold under that decree; and this, of course, would go far to defeat the defence of her vendees, so far as it depends on the Statute of Limitations.
Mrs. Hurst died in 1861; and if, under the decree, she entered as tenant for life, the owners of the remainder in fee could have no posessory action until her death, and the statute could only begin to run from that time: Ege v. Medlar, 1 Norris 86. If, however, that decree gave her no "right, then her entry was without right, and her claim and possession being adverse, the statute would give her a good title.
Now, the court held, that no title vested in her by force of the decree in partition; that, so far as it was concerned, she entered without right; that it was inoperative, except in so far as it was adopted as the basis, of the family settlement already referred to. In this we think the court was right.
In the first place, the jury appointed, under the proceedings in partition, to make division of the-property, finding that they could not make an equal partition of the estate, divided it as best they could, and appraised the purparts. Here, under the Act of 29th April 1832, their power ended. They proceeded, however, to allot the several purparts to the widow and heirs nominatim ; this of course, they had no power to do. This power belonged to the court alone, and that, only after choice by the heirs, in regular order. Nevertheless, the court adopted this allotment, and, though irregular, it might have been valid if the heirs had come into court and accepted under the decree; but they never did so; and it is hardly necessary to say, that, without such acceptance, the partition came to nothing. Neither court nor jury could impose owelty on either of the heirs, without his or her consent; neither could
There is another difficulty in this partition, which to me seems insuperable. Notwithstanding the jury could not make equal partition between the widow and heirs, and so were forced to make a valuation, in order to equalize the purparts; yet one of those purparts, so valued just as the others, was assigned to the widow, without any consideration of, or reference to, the fact, that her estate was of one-third of the whole for life; and, furthermore, by that assignment and valuation, she became entitled to owelty. Here then, is certainly a fatal defect in these proceedings, for dower is not set off to the widow ; nor is there a pretence in that direction, but she is treated as an heir, and allotment made to her accordingly.
But again, if she may, in any case receive owelty, it follows, that she may be charged with it; but she could not be so charged without her consent, or peradventure, she might be charged out of her dower. She must therefore have the right of choice along with the heirs, but for this, no provision' is made in the statute; and this for the very good reason, that her estate is but for life, hence not equal to that of an heir. If she were required to pay owelty, it might be more than her estate would be worth, for it might be determined with her life, the next hour after payment; and the same objection lies to her receiving it.
How can a life-estate possibly be equalized with a fee ? Had the partition been regularly made; had the purparts been numbered and valued, and thus returned, as they ought to have been, to the
There is nothing else in the case which requires comment.
Judgment affirmed.