41 Pa. Super. 77 | Pa. Super. Ct. | 1909
Opinion by
Elizabeth Sanders died intestate, seized of land, and leaving to survive her five children, one of whom was a married daughter who subsequently died intestate, without issue, and leaving her husband to survive her. After her death, he filed a
The first question to be considered is, whether the orphans’ court had jurisdiction to award partition of the land of the' decedent, Elizabeth Sanders, on the petition of the husband, tenant by the curtesy, of her deceased daughter. That the orphans’ court has jurisdiction to partition the land of a decedent so situated as to the title, and that the husband of the deceased daughter, by reason of his fife estate in an undivided one-fifth part, is a necessary party to the proceeding we regard as clearly decided in Rankin’s Appeal, 95 Pa. 358. In that case Hawkins, P. J., of the orphans’ court upon an elaborate review of the statutes in force, and the decisions under them as well as under earlier statutes of similar general import, reached the conclusion, which was reiterated by the Supreme Court on appeal, that these statutes are to be liberally construed, and that taken together they give jurisdiction to the orphans’ court in cases: first, of intestacy; second, of testacy, wherein there may be minors interested, or the provisions of thé will do not alter the course of descent; third, where title is derived from different ancestors by- descent or devise. In discussing the rights of the fife tenant Justice Paxson said: “Our acts of assembly in relation to partition in the orphans’ court, though passed at different times, in reality constitute one system, and must be construed together. They are ample for the protection of a life tenant, but I am unable to see in any portion of this legislation even an intent that such tenant may come in and compete with heirs for the property. Nor is it necessary, for the preservation of his rights. The object of partition is a severance of possession. The life tenant is a necessary party to the proceedings. It is the duty of the inquest to set off to the widow her share by metes and bounds, if it can be done: Bishop’s Appeal, 7 W. & S. 251. By analogy the same rule may be extended to other tenants for life. It is true this leaves the remainder
A statement of some additional facts is necessary in order to give a correct understanding of the question which arises out of the allegation of the respondents’ answer as to their exclusive and adverse title and possession. It is alleged in the petition and not denied in the answer that in 1901, after the death of Emma, the petitioner’s wife, the respondents, by four several conveyances, the dates and tenor of which are fully set forth, acquired the title and interest of the four other children; and it is alleged in the answer and not denied in the replication that since that time they have paid all the taxes on the property, they having been assessed in their names, and have received the entire rents, issues and profits. Neither the petitioner nor his deceased wife was ever in the actual occupancy of the premises after the death of Elizabeth Sanders. While the respondents deny the petitioner’s title, and assert their exclusive title and possession in very vigorous terms, they do not assert any right or title adverse to Elizabeth Sanders or any right or title derived otherwise than as above stated. As was proper in view of some of the allegations of the answer, the court received
The next question to be considered is as to the power of the inquest to allot the purparts into which they divided the land. The case is peculiar and not exactly like any other that has come to our notice. It appears by the return of the inquest, that they found that the property could be divided and parted without prejudice to or spoiling the whole; that they divided it into five purparts, numbered one, two, three, four and five, which were fully described; that they valued number one at $250, and the four other purparts together, at $1,000; that they allotted number one, “being the equal one-fifth part of said premises in both area and value,” to the petitioner for life, with remainder to the respondents, and the four other purparts, “being the equal four-fifths part of the premises in both area and value,” to the respondents. It appears by the draft attached to and made part of their return that the five purparts are respectively of the same area, and were valued as follows: number one, $250, number two, $175, number three, $175, number four $200, number five, $450. The petitioner excepted to the return upon the ground that the sheriff and jurors had no authority to allot the purparts. The court sustained the exception and set aside the allotment, but otherwise confirmed the return of the inquest. It is argued in opposition to this exception, upon the assumption that the petitioner is to be treated as one party and the two respondents jointly as the other party, that there was allotted to each a portion of the land corresponding both in area and value with that party’s interest in the estate, and therefore the petitioner has no right to complain. While it is true that a life tenant has no right, in the orphans’ court, to elect, or to come in and bid upon return of a rule to accept or refuse (Rankin’s Appeal, 95 Pa. 358) yet he has such
The last question to be considered is as to the power of the court to strike off the allotment and confirm the inquisition otherwise. There may be cases where the court would be justified in striking out of the return irrelevant matter as surplusage, but a striking out of that which may have affected the judgment of the inquest in other matters, and then confirming the inquisition as amended is quite a different thing. In Christy’s Appeal, 110 Pa. 538, it was said that if the return is, as such, defective in leaving uncertain what the inquest did, or what they intended to be understood as done, the court ought, even without exceptions of parties, to set it aside. For the same
The decree setting aside the allotment and confirming the inquisition otherwise is reversed, and the record is remitted to the orphans' court with directions to set aside the inquisition as a whole and to award an alias inquest to make partition, unless within thirty days from the date of this decree the parties shall elect in writing to have the inquisition as returned confirmed as a whole, in which event the court shall confirm the inquisition, and give judgment that the partition thereby made be firm and stable forever, and that the costs thereof be paid by the parties concerned in proportion to their several interests. It is further ordered that the costs of this appeal be paid by the appellee.