50 Pa. 375 | Pa. | 1865
The opinion of the court was delivered, by
It is conclusively settled in this state that a widow’s dower interest in the lands of her deceased husband is not changed into personalty by proceedings in partition by which it is valued, and the interest becomes an annual charge. It retains its character as realty notwithstanding. This may be considered elementary law now with us.
When, therefore, Mann, the second husband of the appellant, acquired by .purchase at a public sale a portion of the real estate
As to the interest paid by Fry, the owner of another portion of the first husband’s estate, we think it was not a debt against the estate of Jacob S. Mann. The auditor finds that so far as the money was received by Mann, it was so received by him in the presence of and with the assent of his wife. Prior to 1848 her assent was of no consequence if he received it; it is between 1848 and 1858 for which she now claimfe, and it was during this period that it was received without objection by her. Ordinarily such a receipt would be construed to be for her use, and as her agent; this Johnston v. Johnston, 7 Casey 450, and Graybill v. Moyer, 9 Wright 530, prove ; and we do not mean in the least to modify the principle ; but we think the testimony in this case would fully have authorized the auditor to have inferred the husband’s use of the money by the assent of the wife. “ Every time',” says Fry, “ I paid the money, she was present, and made no objection.” When, at length, she directed payment to be made to herself, and was asked why she did not sooner make that request, she said “ she thought that what belonged to the wife belonged to the husband.” From that time on, which was in 1858, until her husband’s death, the interest was yearly paid to her, without any objection by the husband, so far as the testimony discloses. It seems to us, from all this, that no other inference could properly be drawn, but that the money was used in a way agreeable to the wishes and interest of the wife'and with her assent. This is strongly inferrable, certainly from the fact of her withdrawing her assent after its receipt for a number of years by the husband, accompanied by words showing that she had assented to its use by him during that time. The cases referred to, last above, show that she might give her money to her husband or assent to his use of it for purposes in which she was a common beneficiary. Upon the whole, we think this portion of the claim of the widow was rightly decided against her.
■ We are of opinion, therefore, that there is nothing requiring correction in the record, and the decree is affirmed at the costs of the appellant.