5 Whart. 208 | Pa. | 1840
The opinion of the Court was delivered by
The plaintiffs were the brothers and sisters, or brother’s children, of John Seider, who died intestate, leaving no children, but a widow, who is the defendant. He died in February 1831, seised of the premises in dispute, viz. a house, and about twenty-two acres and eighty perches of land: it is admitted that the widow is in possession, and has been since her husband’s death.
On the 4th of May, 1834, Samuel Seider, one of the brothers of the deceased, presented a petition to the Orphans’ Court. This petition stated the death of John, leaving neither father, nor mother, nor issue, but brothers and sisters; describing-the property now in suit, and a lot of three acres of woodland; and “ prayed the judgment of the Court on the matter, by inquisition to be awarded, or otherwise, as the Court should think proper, to obtain the same, whether the estate could, or could not, with .propriety be divided; and whether the widow should have a moiety or half part thereof, including the mansion-house, during her natural life; or whether she should hold and receive the rents, issues and profits of one moiety thereof during her life, according to the fourth section of the act of 19th of April, 1794:” whereupon the Court awarded “an inquest to ascertain whether the said real estate can with propriety be divided among the widow and legal representatives of the deceased, in such manner as to give the widow one-half, including the mansion-house.” The inquisition was taken on the 6th of August, 1832, finding that it could not be so divided. On the 16th of September, 1833, the inquisition was confirmed. And after proving, what was not denied, viz. that the widow had been, and is, in possession, and had said she would hold the land as the law would decide, the plaintiffs rested. The defendant then called witnesses to prove, that five or six years ago, in the court-house, there was an agreement between the widow and several of the heirs, (some not being present;) and three men were either chosen by the Court or the parties, to fix the amount of the yearly rent. That the men met, some of them having been notified by Solomon, one of the heirs. That they did fix a certain rent, (a writing containing which was offered and rejected.) One of the referees said, all this fell through because notice was not given to all the heirs.
I think I may fairly conjecture, that it was in consequence of this agreement at Court, that the Court confirmed the informal and
The plaintiffs’ counsel stated certain propositions, and required the opinion of the Court on them. [Here the learned judge stated the propositions and answers.]
It will presently be seen, that where a person dies leaving a widow and no issue, her interest in his lands is in no respect like her dower at common law, except that it is only for her life. No writ of dower lies for this her interest — if it does in any case for the interest of the widow of an intestate in his lands — (it may lie, against a purchaser of lands from her husband after marriage, where she has not executed the deed ; because her children having no interest, no petition for appraisement, or valuation, can be sustained, and unless she could support an action of dower for such lands, she would have a right and no remedy:) but where the husband dies seised and intestate, the better opinion seems to be, that the proceeding must be according to the acts of assemblyand this is such a case.
It would seem necessary to cite, at least parts of several acts relating to this matter; and the rather so, as some of them seemed to have escaped the notice of the plaintiffs’ counsel.
The act of the 19th of April, 1794, after providing for cases where a widow and children are left by an intestate, proceeds in section 4, to say, “ If the intestate leaves a widow and no lawful issue, the said widow shall have one moiety or half part of the real estate, including the mansion-house, during her natural life, except in cases where, in the judgment of the Orphans’ Court, the estate cannot with propriety be divided: and in that case, she shall have and receive the rents and profits of one moiety of the real estate.”'— Evidently this means one moiety of the rents and profits, for how can the rent of one moiety of an estate be ascertained, if it cannot be divided into moieties.
The 22d section states, that “ To prevent any doubts which may hereafter arise concerning the manner in which partition of the intestate’s estate may be made, Be it it enacted,” and proceeds to direct, that on a petition presented by the widow or any of the children, if of age, or by their guardian, &c. and if partition is made, the Orphans’ Court to confirm, “ provided, that where any estate in lands, tenements or hereditaments cannot be divided among
No doubt, that although the widow is not named in the last clause, he who drew the law thought she was included in the phrase “ in the same manner as hereinbefore directed,” — but doubts were suggested, and to remove this one, and some others, the act of the 6th of April, 1797, was passed; the 8th section of which follows : “ Like proceedings may be had where the intestate leaves no children or their legal representatives, both in making partition, or where the estate cannot be divided without prejudice to or spoiling the whole, by directing an appraisement, and ordering the whole to the eldest brother or his issue, if any such shall be of full age, if he or she shall accept it, or to any other of the brothers or their issue successively, if any such shall be of full age, upon the refusal of the eldest brother or his issue; (and the same provision for females if all the brothers refuse, or there are no brothers,) in the manner and on the condition directed by the act to which this is a supplement, with respect to the children of the intestate. And the same mode of
It had sometimes happened, that when an estate was found by the inquest incapable of division, and was appraised, that no one of the children or representatives would take it at the appraisement. On the 2d of April, 1804, an act was passed prescribing proceedings on which the Orphans’ Court might order it to be sold; and the Court on a sale, are directed to distribute the price according to law and justice; but as that act did not expressly provide for the case where the estate was divided into fewer parcels than there were heirs or representatives, this last act provided, in section seven, “ Where the estate of an intestate is divided into fewer number qf parts than there are children or representatives, and any or all of the .said parts is or are refused to be taken by the children or representatives, the like proceedings shall be had to sell the parts so refused, as is directed in case of the appraisement of the whole, in and by an act of the 2d of April, 1804.”
I am aware that in Young v. Bickell, (1 Serg. & Rawle, 460,) it has been supposed Judge Tilghman expressed a doubt as to the power of the Orphans’ Court to make partition between the widow and representatives, where there are no children. In that case there was a widow, no children, but a father to whom the part not given to the widow went during his life; and to whom the widow’s part also went, if she died before him: and the doubt was, whether the acts of assembly provided for such a case, where only tenants for life were parties to the partition; and he says the acts contain “ expressions of large import respecting partitions, and I suppose there was a general intention of authorizing partition in all cases where the real estate descended to several persons. Yet I see difficulties in the present case where the whole estate goes in the first instance to tenants for life.”
Judge Yeates was decidedly of opinion that the acts of assembly embraced every case and observed “ that those in reversion had notice even before the Court objecting to the gross inequality of the partition.” It was set aside by the unanimous opinion of the Court for this inequality. Now the doubt of Judge TiLGHKrAtr was confined to the case where only tenants for life were before the Court, and whether a partition between them ought to bind those in reversion.
In the case before us, the question is, whether the brothers and sisters having presented a petition for division only, or whether
This vie w of the case, which is substantially as it was considered in the Court below, puts an end to the plaintiffs’ ejectment, and supercedes the necessity of a particular notice of the points propounded to the Court, and the answers thereto.
Judgment affirmed.