37 Pa. 95 | Pa. | 1860
The opinion of the court was delivered, by
— The main question discussed in the argument presented in this case, was as to the power of the court to order a sale of the property for the purposes set forth in the petition, owing to the peculiarity of the interests involved. This is a question of jurisdiction under the Act of 18th April 1853. The error assigned, however, is general, and covers all valid grounds of exception to the decree.
The Act of 1853 has great scope; all of its provisions have, perhaps, not yet been called into active exercise, and may not be for some time to come; and hence it is prudent that no more be said in each case that may arise than may be necessary to determine whether it be within its provisions or not.
There seems to be, however, clear authority in the act to sell real estate by order of the Orphans’ Court, whenever “ the dece
Two parties interested in the property proposed to be sold objected, and answered that the legacy was not a charge on the realty — that the debts were over stated — that one, and the principal one, was barred by the statute of limitations — that the claim for paving the cartway was greatly exaggerated and not due.
There was a hearing before an auditor, after notice, and he reported in favour of the sale. Ho exceptions were filed to his report, although I think there was abundant room for objection so far as the legacy was concerned. It seems to us that it was not a charge against the realty. It was simply a personal charge by virtue of the acceptance of the devise, and the remedy was by action against Samuel Grenawalt, the devisee: Brandt’s Appeal, 8 Watts 198; Dewitt v. Eldrod, 4 W. & S. 414; Miltenberger v. Schlegel, 7 Barr 241; Hackadorn’s Appeal, 1 Jones 86. The legacy out of the question, a different conclusion might have been arrived at by the auditor and afterwards by the court.
But taking it as presented in the auditor’s report, that there were existing claims against the estate for debts “ not liens of record,” and that repairs and improvements were needed to other parts of the estate, held for the “same uses and persons,” which required the raising of money by a sale of a portion of it for the relief and benefit of the residue (for this is the essence of the report), what ground is there to question the power of the court to order a sale ? It certainly may be done for the payment of debts: so also by a fair interpretation of the act may it be done for improvement and repairs; for the act provides that money raised shall not be expended except for the payment “ of liens, or improvement of the real estate mortgaged, or other real estate, when held for the same uses and persons.” If it may be so applied, it may be raised for the purpose of such application.
The court have jurisdiction, therefore, to order a sale for some
To return to the interests proposed to be sold here : — The main objection is, that it divests a life estate in Maria Grenawalt in a part of the premises. I do not discuss the right to do this — it is an abstraction in the case: for Maria has withdrawn her objection to the sale, and assents to and requests it. The court having jurisdiction to decree a sale of realty descended or devised, for the purposes proposed, their decree would not be void, and the assent of Maria would for ever estop her and her heirs from avoiding the sale in the hands of a bond fide purchaser. Until the contrary be shown we must treat her as sui juris, and give effect to this presumption as in any other case. Samuel Grenawalt is the devisee in fee of the premises, subject to the life estate in Maria, and he is the petitioner and prays for the sale. Calvin, the son, is of age, and if he may be regarded as contingently interested, he also assents. The objector is Josiah Grenawalt. As already remarked, the fee was devised by very sufficient terms to pass itto “ Samuel Grenawalt,” and “to his heirs and assigns.” The limitations over to Josiah, in the event of the death of Calvin, the son of Samuel, without issue, could only have effect by way of executory devise. It could not exist as a remainder, for the entire estate passed to Samuel, subject to the life estate of Maria, and there could be no remainder in an entirety. Such interests as this, by express terms of the act, may be sold. Estates whereon are limited “ contingent remainders or executory devises,” are subject to sale. The compensation in the act for the conversion is the substitution of the fund to the same uses and persons as was the land. So this interest is not in the way.
The objection that all the parties interested immediately or remotely are sui juris, and are not to have their interests divested without their consent, hinted at in the argument, has also been considered. The Act of 1853 is a general law, operating on all cases alike — is intended as a rule of property, and is unlike the case of Erwin’s Appeal, 4 Harris 256, which exposed a legislative attempt to make a rule in a special case after rights had become vested under existing laws. I think it was well decided
We think the bond executed and filed in this case was in form and in terms sufficient. The statute empowers and enjoins the court to require of the party to execute the decree, adequate security to guarantee a faithful performance of it. It is not indispensable that it should precede the decree. In fact, it might be difficult sometimes to give a sufficient bond prior to the order of court designating the party to execute the decree; but, be this as it may, there was a bond approved and filed in this case.
The decree of the Orphans’ Court is affirmed at the costs of the appellant.