Williams v. White

35 Pa. 514 | Pa. | 1860

The opinion of the court was delivered by

Lowrie, C. J.

We are very sure that the partition laws do not intend to make a man a debtor to himself; and that, when an heir takes land in partition, subject to the widow’s thirds for life, and to the distribution of one-third of the valuation at her death, he does not become debtor to himself for his share of that third, but only to his co-heirs for theirs. The Act of 11th April 1799 is quite clear in conveying this thought, for it declares that such heir shall take subject to a lien thereon in favour of the other parties for their shares, and it has been so applied in practice : 2 Whart. 240. Looking at this principle carefully, it will be seen that, where the partition is equal among the heirs, each has his full share of all the land, subject only to his share of the widow’s thirds, and then she is the only other party to be secured, and the only lien is one in her favour.

And we think that the partition law of 7th April 1807 adopts no different principle for cases where the partition among the heirs is equal. It makes the principal of one-third of the valuations a charge; but this is only for the purpose of securing the widow her thirds, and not to secure to each heir what he already has; for the law is not to be read as requiring vain things. Even when partition is unequal, the lien has not been understood as securing the taker’s share of the reserved third of the valuation; for he is regarded as having it: 2 Penn. R. 340; 5 Whart. 542; 1 Barr 118. Without a special agreement to the contrary, therefore, an heir who has thus taken land in partition and conveyed it away, has no lien or right on account of the third reserved for the widow; and when the partition is equal, and each has an equal share of the widow’s thirds to pay, no one has any claim upon another for any part of the reserved thirds on the death of the widow. The clause of the Act of 7th April 1807, § 6, that provides for a distribution of this sum among the heirs, on the death of the widow, does not apply to cases of completed equal partitions of the land, for that distribution is already made.

Judgment reversed, and judgment for the defendant below with costs.