13 Pa. Super. 296 | Pa. Super. Ct. | 1900
Opinion by
Jacob Palm by his will disposed of his real estate as follows: “I direct, and it is my will, that my son Isaac shall have my house and lot which I now occupy at Sinking- Spring, containing about one-half an acre of ground, with all the appurtenances belonging thereto, at the sum of four hundred dollars, the interest whereof is to be paid annually to Molly Grimes during her lifetime or widowhood .... and, upon her death or marriage, I direct the said sum of four hundred dollars to be equally divided among my said three children, Isaac, Ellen and Henry Palm, or their lawful issue.” After the death of the testator, the interest of Isaac Palm was sold by the sheriff upon a judgment and purchased by the said Molly Grimes. After her-death, under proceedings in partition and subsequent conveyances, the estate became vested in the present appellant. The;
As to the interest of Isaac two questions arise: 1. Is the petition of the widow a compliance with the provisions of the act of 1834, supra? 2. Was his interest in the legacy charged upon the land as well as his legal title divested by the sheriff’s-sale?
The 59th section of the act of 1834, supra, reads as follows: “ When a legacy is or shall be hereafter charged upon or payable.out of real estate, it shall be lawful for the legatee to apply, by bill or petition, to the orphans’ court, having jurisdiction of the accounts of the executor of the will by which said legacy was bequeathed; where upon said court, ” etc. It is clear that, the widow has no right, under this section, to petition for the application of the remedy provided therein, and it may be doubted whether a payment to her under the decree in this case would discharge the land of the appellant from the lien of the charge upon it, if it in fact existed. The petition in such a case must be presented by the representative of the legatee as was done in Moran’s Appeal, 13 Pa. Superior Ct. 251. The decree as to Isaac’s interest cannot, therefore, be sustained. But it seems, to
As to the interest of Ellen, no question is raised as to the right of her husband, who was the administrator of her estate, to apply for the benefits of the provisions of the 59th section
In view of the fact that the representative of Ellen made demand upon John S. Grimes, in whom the estate of Molly Grimes became vested under proceedings in partition, for the payment of her interest in the amount charged upon the land devised by the will of Jacob Palm to his son Isaac prior to the date of the proceedings in partition and apparently abandoned the claim, making no subsequent claim upon the said Grimes, and permitted the said property to be sold at public sale to the .appellant without notice of his claim, although letters of administration upon the estate of his wife had deen issued to him more than a year previously, we think it would be inequitable to visit the costs of this proceeding upon the appellant. It is, therefore, adjudged and decreed that the decree of the orphans’ court be reversed and set aside, so far as it relates to the interests of Plenry Palm and Isaac Palm in the legacy charged by their father in his will upon the land now in the possession of the appellants, and that, so far as the interest of Ellen Ernst is concerned, the said decree be affirmed, and that the appellant pay to the administrator of Ellen Ernst the one-third part of the said sum of $400, with interest thereon from the time when the same became payable under the terms of the will of Jacob Palm, to wit: at the death of Molly Grimes, the costs of this appeal to be paid by the appellees.