66 Pa. 270 | Pa. | 1870
The opinion of the court was delivered, February 9th 1871, by
— This was an ejectment for 135 acres of. land in Cowanshannock township, in the county of Armstrong. It was shown by the evidence given on the trial that James Kinley died in the fall of 1849 intestate, seised of the land in controversy, leaving a widow, Sarah, now intermarried with Harrison Gourley, the defendants in the ejectment, and the plaintiff, his only son and heir at law, surviving; that James Hunter was appointed his guardian, on the 27th of March 1868, by the Orphans’ Court of Armstrong county; and that the writ in this case was duly served on the defendants. This is the substance of the plaintiff’s evidence. The defendants, having given no evidence, requested the court to charge the jury: 1st. That under the evidence there cannot be, in any event, a recovery for more than the undivided two-thirds of the land. 2d. There being no evidence of an ouster in this case, the verdict must be for the defendants.
The court answered both points in the negative, and instructed the jury that the plaintiff, having shown a good title, must recover, and that the widoiv’s remedy is in the Orphans’ Court.
The assignments of error embrace the ansAver of the court to the defendants’ points, and virtually raise but one question: Is the plaintiff, under the evidence, entitled to recover the land of which the intestate died seised ? In other words, can the heir at law turn the widow out of possession by ejectment before any proceedings have been had for the partition or appraisement of the estate ?
The Intestate Act of the 8th of April 1833 provides that “ where such intestate shall leave a widow and issue, the widow shall be entitled to one-third part of the real estate for the term of her life;” and “ where such intestate shall leave a widow and collateral heirs or other kindred, but no issue, the widow-shall be entitled to one-half part of the real estate, including the mansion-house and buildings appurtenant thereto, for the term of her life.” Under the provisions of the Orphans’ Court Partition Act of the
This case is criticised by Woodward,. J., in Zeigler’s Appeal, 11 Casey 189, and his concurrence in the decree in that case, is put expressly on the ground that the widow’s interest, as ascertained by proceedings in partition under the Act of 1794, is an estate in land, and not a lien within the meaning of the Act of. 1830, relative to the lien of mortgages; and it is reviewed in Schall’s Appeal, 4 Wright 177, and the reasoning — but not the conclusion arrived at — is disapproved; and it is there said “ that the widow’s statutory dower ought not to be treated as a lien on,
The case of The Commonwealth v. Haffey, 6 Barr 348, where an action of partition was brought in the Common Pleas, and an
The judge, before whom the cause was tried, instructed the jury that “the widow is entitled to live in the mansion-house, and occupy the premises with the other heirs, until there is a proceed
It follows that the court should have affirmed the defendant’s 2d point, and instructed the jury that the plaintiff is not entitled to recover.
Judgment reversed.