71 Pa. Super. 146 | Pa. Super. Ct. | 1919
Opinion by
Jacob Reinstein during his lifetime entered into written articles of agreement with Hiram Carrier for the purchase of a tract of land containing one hundred acres, in Pine Creek Township, Jefferson County, entered into possession of said land in accordance with the provisions of the agreement, and paid all of the stipulated purchase money except sixty-four ($64) dollars. He was residing upon the tract in August, 1864, when he died, leaving to survive him a widow, Hannah Reinstein, and four children. The widow continued to reside upon the land and there reared her children, who one after another married and left her, until March 15, 1898, when she, by general warranty deed, conveyed the tract to the appellant. In September, 1871, she paid the balance of the purchase money to Hiram Carrier and he delivered to her a deed purporting to convey the property to the “heirs of Jacob Reinstein,” the deed containing the recital that the tract was “the same land sold to Jacob Reinstein in his lifetime by Hiram Carrier.” Mrs. Reinstein, the widow, objected to the form of the deed, but was told by the grantor that it could not be made otherwise. It may be assumed that the widow was illiterate, for in all the writ
The first question presented is the nature of the title of Jacob Reinstein to this tract of land, at the time of his death, as affected by the character of the deed subsequently executed by Carrier, the grantor. The deed was to “the heirs of Jacob Reinstein,” but it recites that the land had been sold to Jacob Reinstein in his lifetime, it does not say whether Reinstein had paid all of the purchase money, but it clearly establishes that Reinstein had died seized of an equitable title to the land. That equitable title was a part of his estate and was subject to the rights given by law to his creditors, his widow and his heirs. It was not within the power of Carrier or any other person to abrogate those rights. Carrier did not attempt to convey to the children by name, nor to designate the heirs; the purpose of his deed was, the purchase money having been paid, to divest himself of the legal title and vest it in the persons who were entitled under the law to take the land, and the word “heirs” is not in such a conveyance to be construed in its technical sense. The testimony of the witnesses called by the appellee was in entire harmony with the recitals of the deed and established that the decedent had during his lifetime an equitable title to the land, under a written agreement, and that he had paid all but a small amount of the purchase money and that that balance had been paid by his widow after his death. The land was such property as the widow was entitled to take as her exemption, under the Act of April 14,1851, P. L. 612, unless that
The reason upon which the court below based its action for setting aside the appraisement and vacating the decree was the long delay of the widow in asserting her right to the exemption. The learned judge was of opinion that the widow had no right at the time she attempted to assert it, that the Orphans’ Court could confer none upon her, and that the decree was void. The question presents some difficulty and the action of the court below was not without authority to support it. It was held in Burk v. Gleason, 46 Pa. 297, that a widow must make her claim within a reasonable time after her husband’s death; and that she could not claim after the lapse of seven years and a second marriage. There were in that case conflicting decrees of the Orphans’ Court and, although the action was collateral, the rights of the parties could not be determined without impeaching one of the decrees. It must, however, be conceded that that decision is authority for the doctrine that the Orphans’ Court is without jurisdiction to entertain a proceeding for appraising and setting over real estate to a widow, when she has not asserted her right within a reasonable time after her husband’s death and has remarried, that a decree made in such circumstances is void, and may be attacked in a collateral proceeding. The soundness of that decision was distinctly questioned in Shumate v. McGarity, 83 Pa. 38; in that case, as in the present one, the widow had not remarried, and the court said: “upon the mere ground of lapse of .time, we cannot consent to impeach the jurisdiction of the Orphans’ Court.” The ground upon which that case was put was that the record of the Orphans’ Court disclosed that McGarity had died prior to the approval of the Act of 1851 and, for that reason, the Orphans’ Court was without jurisdiction. The question in that case also arose in a collateral proceeding. In Kerns’ App., 120 Pa. 523, the application.for redress was made in the same proceeding, it did not in
Mrs. Beinstein, the widow, had retained possession of this tract of land for thirty-four years after her husband’s death; she had paid off the balance of the pur