Shallenberger v. Ashworth

| Pa. | Jul 1, 1855

The opinion of the Court was delivered by

Lewis, C. J.

Where land is devised to executors to be sold, and the proceeds divided among legatees, the latter, if all of them consent, may take the land instead of the money. The husband, by virtue of his marital power, may exercise the right of election for his wife; and in such case, she becomes the owner of the land in fee simple subject to his life estate. His act enures to her benefit. The land is substituted for the money, and vests in the person previously entitled to the proceeds. The husband, it is true, may reduce the wife’s chose in action into possession, and thus make himself the absolute owner of it. And where he discharges it in consideration of a conveyance to himself, from one having a right to make it, he may, perhaps, make himself absolute owner of the land. But this is not properly an election, but a purchase; and cannot be done without writing, because the statute of frauds, and perjuries prohibits it. Election is where the land is taken by the owner of the proceeds: Beal v. Stehly, 9 Harris 376. But the- election in this case was made by the wife herself, in the presence of her husband and with his assent. His entry into possession under the arrangement thus made must be regarded as an entry under the title of his wife, and not adverse to it. Upon his death, a right of action accrued to the heirs of the wife, and the statute of limitations could not begin to run until that period. The defendants had no show of right whatever, and the charge of the Court was quite as favourable to their claim as they had a right to expect.

Judgment affirmed.