105 Pa. 390 | Pa. | 1884
delivered the opinion of the court, October, 6, 1884.
One of the questions involved in this contention is whether the commissioners nominated by the children and heirs at law of a decedent, and appointed by the Orphans’ Court to make partition of the real estate of which their father died seised, after having divided the land into as many purparts of equal value as there are heirs, have the power to allot to each child respectively, by name, one of said purparts. The learned president of the Orphans’ Court held they had, and in this he was clearly right.
The provisions of the Act, March 29, 1832, revising and consolidating previous enactments relative to partition in the Orphans’ Court, and the course of practice thereunder for more than half a century, ought to be sufficient to preclude any doubt as to the power .in question. The thirty-sixth section of the Act empowers the Orphans’ Court of the county where the real estate of a decedent is situate, “ on application of
The object of partition is severance of the joint possession, and accordingly the Act of 1882 primarily provides for an equal division of the estate among the parties entitled thereto, and then for the several contingencies that may arise in case that is impracticable. One of these is where the estate cannot be parted: that is, where it will not admit of any division whatever without prejudice to or spoiling the whole. Another is where the estate admits of division into as many purparts as there are parties, but not so as to make the shares of equal value ; and the third is, where it cannot be divided into as many shares as there are parties, but may be advantageously divided into two or more purparts. In each of these contingencies the 37th, 38th and 39th sections of the Act respectively provide for an appraisement by the inquest, and for allotment of purparts, adjustment of owelty, etc., by the court. But the 36th section, contemplating an actual and equal division among all the parties entitled, makes no pro
The construction Ave have given to the Act of 1832 is not affected by subsequent legislation, so far as the question under consideration is concerned. The supplement of April 11, 1835, Purd. 1116, pl. 21, empowering the sheriff and inquest “ to divide the property into such number of purparts as shall appear to them most convenient and advantageous, without regard to "the number of parties in interest and to the value of each purpart,” does not modify the 36th section of the former Act. It is still the primary duty of the commissioners to divide the land into as many parts, of equal value, as. there are heirs; and, in this case, they found that such a division was entirely practicable. The Act of May 5, 1841, P. L., 353, is not applicable to partition in the Orphans’ Court. In express terms it relates to “cases of partition in the Common Pleas.” Nor does the Act of April 22, 1856, Purd., 1116, pl. 24, affect the question under consideration-.
The amendment of the petition and writ was clearly in the power of the court, and under the circumstances disclosed by the testimony it was rightly allowed. No injustice was done the appellants thereby, and they have no just reason to complain.
Some of the specifications of error suggest questions that were not properly raised in the court below, and for that reason are not entitled to be considered here; but, waiving all that, we find nothing in any of them that would justify a reversal of the decree.
Decree affirmed and appeal dismissed at the costs of the appellants.