47 Pa. 403 | Pa. | 1864
The opinion of the court was delivered, by
The plaintiff’s intestate accepted a share of his deceased father’s estate at the valuation made in partition, and entered into recognisance for the payment of the interest on the same to the widow for life, and the principal to the heirs entitled at her death.
The effect of the recognisance, under the facts stated, on the interest of the representatives of the recognisor, is the question nowr before us. Before proceeding to this, we may as well say here, that, as no objection seems to have been made to the administrator as a proper party in agreeing to the case stated, vre think it too late now to interpose it, and this is all the notice we need take of this objection.
Was the interest of the recognisor, in the valuation of his purpart, the one-third of which constituted the amount of the recognisance in favour of the widow and the heirs, extinguished by operation of law ? That it would be, if the estate remained in his hands until the widow’s death there is no doubt. Riegle v. Seiger, 2 Penna. Rep. 340, and subsequent cases, clearly establish this. So too the same thing would follow from a sale of it by him, unless he expressly contracted for an opposite result: Updegrove v. Updegrove, 1 Barr 136; Shelley v. Shelley, 8 W. & S. 153.
If a different result be required for the purpose of subserving the ends of justice, it comes of the facts more than of the law. The plaintiff’s intestate, the recognisor, died thirty-three years before his mother, the widow of Jacob Dreisbach, the elder. During that period the property, bound by the recognisance of Jacob Dreisbach, Jr., deceased, passed under one Orphans’ Court
After the death of Jacob Dreisbach, the younger, his administrators petitioned the Orphans’ Court of Northampton county for an order to sell the land which the intestate had accepted as his share of his father’s estate, “subject to the payment of the interest of $4108.03 (afterwards reduced by correction to $3685.85), annually to Margaret, the widow of Jacob Dreisbach, the elder, deceased, during the time of her natural life, and the principal sum to the heirs and legal representatives of the said intestate’s father, Jacob Dreisbach, the elder, after the death of said Margaret Dreisbach.”
The court granted the petition upon the following conditions, to wit, $4108.03 ($3685.83) to remain charged on the premises during the lifetime of the widow, the interest to be paid her annually. After a sale of the premises, and confirmation, a deed was made and accepted with this clause of reservation, viz., “subject to a water-right, &c. The sum of $3685.83 to remain charged upon the premises during the natural life of Margaret Dreisbach, mother of the intestate, to be paid to the said Margaret annually during the period aforesaid, and the principal sum of $3685.83 to be paid and distributed after the decease of the said Margaret, to and among the heirs and legal representatives of Jacob Dreisbach, deceased, the father of said intestate. The said sum being the balance of the one-third of the valuation of the land accepted by the intestate.”
Here, it seems to me, is a clear order of sale upon the terms of continuing the entire charge, followed by the acceptance of deeds with the most distinct reservation of it. But this is not all. The administrator sold the land at $51 per acre, and the purchase-money received by him in full was $2208.38. This sum, added to the sum of the entire recognisance remaining a charge, aggregates exactly the purchase-money at $51 per acre, viz., $5893.21. Thus it demonstrably appears that the pur
It is argued upon the authority of Riegle v. Sieger, 2 Penna. Rep. (supra), that the conditiop of sale, containing the reservation alluded'to, is void. This argument of course abandons all equity in the defence, and trusts alone to the law. The case just alluded to did undoubtedly turn principally upon the ground that a sheriff could not on a sale impose .conditions or make reservations. He was bound to sell the whole estate according to his levy and the requirements of the law. I entirely agree with this as a general rule, although there are exceptional cases in the books.
But this does not prove that the Orphans’ Court might not base its order of sale upon a reservation not injurious to creditors, and beneficial to an heir, leaving the rights of all others unaffected. This is just the kind of case in which that could be done; and where is it prohibited to that court, vested as it is with the discretion to order a sale or not, and to decree it on terms that shall injure nobody, and benefit one at least? A sheriff is vested with no discretion: the Orphans’ Court within its jurisdiction is: and while, undoubtedly, sales made under its authority are judicial, yet they are always subject to conditions, as to the time of payment of the purchase-money, encumbrances in favour of widows, the number of acres of a tract, less than the whole which may be sold, and the like; all of which establish a great distinction between sales t)y a sheriff and Orphans’ Court sales, and which render Riegle v. Sieger on this point of little effect. We think the reservation in this case was valid, and its terms plainly accepted by the purchaser.
Riegle and wife afterwards conveyed to Boyer, with the same reservation of the encumbrance, and its payment is contained in the administrator’s deed to him. He died in 1852, and on partition of his estate, this Dreisbach land was appraised at $10,654.24, and accepted by the defendant, who gave bond and recognisance
The argument that there is no covenant by which the defendant is bound to pay, overlooks the Act of Assembly. The right to call on the party “holding the land,” is expressly given by the 41st section of the Act of 29th March 1832. It says: “ on the death of the widow, the said principal sum shall be paid by the children or other descendants to whom the land shall have been adjudged, their heirs or assigns holding the same, to the person legally entitled. In Shelley v. Shelley, it is sai d by Huston, J., in a case of the same nature as this, “ If the person to whom it was awarded had been sued, no doubt the suit must have been on his recognisance. The law made the shares of the heirs a lien until their money became due, and then made the person owning the land liable to a suit and judgment de terris. We have decided that a recovery may be had by assumpsit stating the facts. On the facts, the law could imply a promise to pay: but the act removes all doubt, and makes him who holds the land as terre-tenant liable.” See Pidcock v. Bye, 3 Rawle 183. There seems to be no difficulty about a remedy if the right exists. The defendant admits by the case stated the right of the plaintiff to recover against him, if he has a right to the money in dispute. No question is made that he is not a proper party to be made defendant. He admits also that the money is in his hands, and that he has paid all the other heirs their shares, and agrees that “if on the foregoing facts the court shall be of opinion, that the plaintiff should recover, then judgment to be entered in favour of the plaintiff for $614.37, together with interest from
Judgment reversed, and judgment for the plaintiff for !|614.37, with interest from the 6th day of April, a. d. 1857, and costs.