214 Pa. 637 | Pa. | 1906
Opinion by
We think the learned court below erred in dismissing the petition for partition under the pleadings and facts of this case. The petition was in the usual form. The widow of the decedent filed exceptions and objected to the proceedings on the ground that they were instituted within a year of his death and were, therefore, premature. The objection was sustained and the petition dismissed.
The authority to award partition of a decedent’s real estate is conferred on the orphans’ court by the Acts of March 29, 1832, P. L. 190, 1 Purd. 603, and June 16, 1836, P. L. 792, 2 Purd. 1627. The thirty-sixth section of the former act empowers the court, “ on the application of the widow or any lineal descendant of the decedent having an interest in such real estate .... to award an inquest to make partition of the real estate of such decedent;” and the forty-sixth section of the act authorizes like proceedings in partition where the decedent leaves no lineal descendants, on the application of the persons in whom the estate shall vest in possession. Clause 5, of sec. 19, of the act of 1836, extends the jurisdiction of the orphans’ court to “the partition of the real estates of intestates among the heirs.” Neither these acts nor any other act of assembly fix a time within which the application shall or may be made or an inquest may be awarded. There is, therefore, no statutory authority for holding, as the court below did, that under the facts disclosed in this case an application made within one year from the death of the decedent was premature.
It is contended, however, by the appellee in support of the ruling of the orphans’ court, “ that nowhere in the law is there any specific requirement for partition within the year, and that, as the law provides for one full year within which to make settlement of the estate, by analogy, this full year must elapse before partition can be made of the real estate of a dece
While notice to the widow and heirs is not necessary before awarding an inquest in partition, yet, as suggested by Mr. Justice Ageev?" in Horam’s Estate, 59 Pa. 152, “ It would be better if the orphans’ court would require a rule to show cause to be issued and served on all the parties in interest before awarding the inquest.” If, on the return of the rule, there are any valid reasons for not awarding or for delaying the inquest, they can be made known and the court can make such decree as the facts may warrant. If it should appear that the
It is proper to say that the learned judge of the court below in denying the appellants’ application for an inquest was misled by the decision in Keim’s Estate, 201 Pa. 609. The short per curiam opinion in the case is misleading in not stating the reason for the affirmance of the decree of the orphans’ court. It was not intended by this court in sustaining the decree in that case to' indorse all the reasons assigned by that court for its conclusion. It was there held by the orphans’ court that the will of the decedent worked a conversion of the real estate. into personalty which constituted a complete bar to proceedings for partition. ' This was decisive of the right to an inquest in the casé, and the decree of the court below was affirmed.
The assignment of error is sustained, and the decree of the court below is reversed with a procedendo.