2 Whart. 81 | Pa. | 1836
The opinion of the court was delivered by
It is admitted that Azariah Lewis died seised of the land in question; but whether he died intestate as to it or not, is a matter of fact about which the parties are at issue: and certainly it is a question which ought to have been settled and known how it was, by the Orphans’ Court, before it proceeded to decree a partition of the land. For if A. Lewis died after having disposed of the land by a will, duly executed by him, he could not therefore be said to have died intestate as to it, whatever he might have done as to other lands of which he was seised at the time of his death. And unless he did die intestate as to it, the Orphans’ Court had no jurisdiction over it, so as to entertain a petition for partition thereof among the heirs of A. Lewis; and to proceed therein as directed by the act of 1794, to make a decree to that effect.
Robert Lewis,- the appellant here, appeared in the Orphans’ Court below, after the petition praying the partition was presented; and made known to the Court by his affidavit, which was filed with the clerk of the Court, that he claimed the whole of the land exclusively, under a devise made of ihe same to him by Azariah Lewis; that he was in the actual possession thereof, and held and claimed it exclusively under the devise; and therefore objected to the Court’s proceeding to make a partition or valuation thereof, as in cases of .intestacy. This objection, if true, was certainly an insuperable one
The inquisition and decree of the Orphans’ Court thereon, are reversed and annulled; and the cause with the record thereof, remanded to the Orphans’ Court, with direction to make an order, that the petitioner and those uniting with him to have partition made of the land, shall first commence and prosecute an action of ejectment therefor, against the appellant, for the purpose of establishing their right by descent to the land, as the heirs of A. Lewis; and again, if they have such right, to recover the possession thereof: And during the interim, until the action of ejectment shall be prosecuted to final judgment, all further proceeding in this case, to be stayed.
Decree accordingly.