268 Pa. 409 | Pa. | 1920
Opinion by
Josiah Brinker died in 1889, leaving a will in which he devised to his daughter, Sarah Miller, his home
The defense was the dower had merged in the fee and that no further payments were due on the mortgage until the principal became payable at the death of the widow, which occurred in 1913. The court below adopted this view of the case and entered judgment for defendant. Plaintiffs -appealed.
Previous to the present proceedings, an action of assumpsit had been brought to recover unpaid dower interest and this court held (Griffith v. McKeever, 259 Pa. 605), affirming an opinion by the court below, that such action could not be sustained for the reason the dower estate and remainder had merged. It was suggested, however, that since the property was subsequently conveyed subject to a mortgage securing the same amount to the same persons, the evident intention was that the mortgage should be substituted for the recognizance given to secure the dower. Merger is a question of intent and will not take place against the wishes of the party affected by it: Danhouse’s Est., 130 Pa. 256, 260; the conveyance of the land by Crownover, however, without express reservation of the dower, would have passed the entire estate held by the grantor: Kreamer v. Fleming, 191 Pa. 534. Although there is nothing to indicate an intent that the dower estate should merge, it is quite clear that the interest-bearing mortgage was substituted for that interest in the estate (Fenton v. Fenton, 208 Pa. 358), and that subsequent conveyances were made
The third assignment of error is sustained, the judgment of the lower court is reversed and judgment is entered for plaintiff non obstante veredicto.