29 Pa. 306 | Pa. | 1857
The opinion of the court was delivered by
We adopt so much of the opinion of the learned judge as relates to the character and effect of the conveyances between Alexander and Wilson Taylor, and their respective wives, and the construction of Alexander’s will.
And the effect of this ruling is fatal to the defendant’s title at all points; for if these deeds were simply a partition by tenants in common, and vested no interest in Alexander’s wife, then the whole estate passed by his will, and under that she took a life estate, subject to be defeated by her second marriage. She held her life estate on condition of remaining unmarried; and when she broke the condition, she forfeited the estate, and it went to the remainder-man, the plaintiff below. And in this view bf the case, her claim of dower is idle, for, taking under the will, she took what it gave her in lieu of dower, and the loss of what she took by voluntary breach of the condition of her tenure, does not restore her right of dower.
But if she did not take under her husband’s will, and has her right of dower, still her alienee cannot defend his possession in virtue of it, any more than he could recover it by action. And this he could not do, either by action of ejectment or dower, because Taylor died seised of the land, and the dower, if any exists, is to be assigned by proceedings under the Act of Assembly in the Orphans’ Court, and is not recoverable by action at common law.
Either way, therefore, whether Mrs. Taylor be regarded as taking or not taking under her husband’s will, it follows from the main position so well stated and defended by the court below, that the defendant had not a shadow of title, and the
Judgment is afiSrmed.
