Gorell Law School Library
Cornell University Library
KFP 123.P2T82
“Wii
3 1924 024 705 984 law
THE
LAW OF PARTITION
IN
PENNSYLVANIA.
BY
WILLIAM TRICKETT, LL.D.,
AND
JAMES N. LIGHTNER, Esa.
NEWARK, N. J.
SONEY & SAGE.
1900
Vie
Corrrfent, 1900,
By SONEY & SAGE
J. B. LYON COMPANY
PRINTERS AND BINDERS
ALBANY, N. ¥.
Tuts Boox
IS RESPECTFULLY INSCRIBED TO
Hon. JAMES T. MITCHELL, LL. D.,
A JUSTICE OF THE
SUPREME COURT OF PENNSYLVANIA,
WITH PROFOUND ADMIRATION FOR THE MANY MASTERLY OPINIONS
WITH WHICH HE HAS ENRICHED OUR LEGAL LITERATURE.
PREFACE.
It is over half a century since the appearance of the ex-
cellent work of E. Spencer Miller, Esq., on the “ Law of Par-
tition by Writ in Pennsylvania.” During that time, jurisdic-
tion in partition has been conferred on the courts of equity,
and that of the Orphans’ Court has undergone great develop-
ment. The statutes touching partition in the various courts
are numerous, and the reports teem with decisions, especially
of cases originating in the Orphans’ Courts. The table of cases
shows that 600 adjudications have been consulted in the prepa-
ration of this volume. The work is submitted to the profession
in the hope that it will be found useful.
We desire to extend our thanks to Lewis 8. Sadler, LL. B.,
and Sylvester B. Sadler, LL. B., for assistance in the collec-
tion of Forms.
WILLIAM TRICKETT,
JAMES N. LIGHTNER.
CarxisLe, November 30, 1900.
CONTENTS.
PART I.
Partition in OrpHans’ Court.
CHAPTER. Pace
I. Jurisdiction of Orphans’ Court ........ 2... 1
TTL ROStACY™ cisratesthra ki war ares this aos ween ie dares Ccdiols 11
III. When Decedent was Tenant in Common...... 24
IV. Obstacles to Partition ..........0 .. 2... eee. 30
V. The Petitioner .... 0.0.0.0... cece ee eee eee 39
VA, ‘Bhe: Pétition ss caasce wav swre sees. aac sk wom 49
VII. Awarding the Inquest ...................0.. 60
VIM. The Inquest: 00. cece er eee es ee ee 65
IX. Notice of Inquisition ....................0.. 72
X. Return of Inquisition....... 0. 22... ee eee 79
XI. Division of the Land ....................0.. 90
XII. Rule to Accept at Appraisement............. 100
XIII. Who may Accept at Appraisement. ......... 110
XIV. Bidding above Valuation .................... 128
XV. Time of Paying Appraisement or Bid ........ 131
XVI. Security for Valuation Money................ 189
XVII. Remedies for Owelty ................2 00-005 154
XVII. Sale-of Band) scc0 cca nessingecowawa aaa 175
XIX. Advancements and Debts due Decedent........ 214
XX. Partial Partition’: .:.c.¢sierescawvew ease w des 219
OMT COST: say aire a Oke BREN Hee Gegia Meat b es ae 222
XXII. Effect of Partition.................-....005. 283
XXIV. Miscellaneous see: asia csce verads cure seas cos 243
PART IL
Partition at Law.
XXIV... Jurisdiction, ..i0sc4ccawseaee sen seeswaad cee 249
XXV. Want of Possession and Title............... 259
XX VI. Subjects of Partition..................008, 263
XX VL Particular Wetites :.c1suxeuvawena vase sees 268
ROC IMM, Phe: Parties ei05 yacies es aaa caer: . 274
XXIX. Proceedings to First Judgment . ........... 282
XXX. The Writ of Partition and Inquisition ....... 299
RX, Allotling Of Pipers. nts sseeeneaw aaan's 310
XXXII. Sale of the Land........ 0... eee eee eee 319
AXXIIL Final Judgment. sivscevsrsavewevewsove ve 327
viii
CHAPTER,
XXXIV.
XXXV.
XXXVI.
XXXVI.
XXXVI.
XXXIX.
XL.
XII.
XLIT.
XLII.
CoNTENTS.
PART III.
Partition in Equity.
Page.
Jurisdiction in Hquity...... 0.00... eee eee 333
PAYEE 8 osa./o oc) ioe eels, be 2S Spears pai Re a a se Bhs reek 340
Obstacles to Partition ..............0.00 000. 344
Judgment and Partition.................04. 3851
DUAR 35. 2 ecw ar cis eRe irae haa Aenea Bata oo 859
The, Bille Cex ..iesias sua ve ged eae Meee tase 363
Advancements, CtC....... cc. cece eee eees 366
PART IV.
Forms.
Forms in Orphans’ Court..............000008 369
Forms in Partition at Law. ................ 400
Forms in Partition in Equity ................ 434
Vinh @ ea fe Bea se segs esos as tn erent alot CAE as 461
CASES
A.
Adams’ Estate, 344.
Adelman’s Estate, 34, 63, 220.
Allegheny National Bank’s Appeal,
254, 345, 357, 367.
Allen vy. Commonwealth, 154.
Allen v. Gault, 251, 322, 324, 326.
Allen v. Getz, 118, 143, 149, 150,
158, 215.
Allen v. Reesor, 149, 150.
Allen’s Estate, 196.
Ankeny v. Penrose, 150.
Arble’s Estate, 177, 178, 180, 247.
Armstrong’s Estate, 47, 48, 61, 64.
see v. Walker, 217, 218,
367.
Atkinson vy. Hines, 205.
B.
Bachman y. Chrisman, 135.
Bagwill’s Estate, 32.
Bailey v. Commonwealth, 142, 143,
149, 154, 155.
Bailey v. Ziegler, 138, 156, 170, 171.
Baird v. Baird, 278.
Baird v. Corwin, 274, 275, 279, 301,
821, 325, 326.
Baker v. Leibert, 28 137, 163.
Baldes v. Henniges, 363.
Barclay v. Kerr, 55, 274, 275, 278,
296, 297, 306.
Barkley v. Adams, 47, 96, 119, 121,
149, 161, 172, 173.
Barkley’s Appeal, 47, 96, 119, 121,
172.
Bartholomew’s Appeal, 65, 96, 106,
126,
Bates v. McCrory, 260, 293, 294.
Baughman’s Estate, 177.
Bauer’s Estate, 31, 60, 184.
Baum’s Appeal, 15, 16, 22.
Bavington v. Clarke, 30, 160, 234,
235, 254, 255.
Beatty v. Smith, 42, 149, 154, 158,
329.
Bedell’s Estate, 161.
Beeson v. McNabb, 193.
Bellas v. Dewart, 250, 252, 275, 282,
299, 300, 303.
CITED.
Bellas v. Evans, 97, 118, 139, 235,
236.
Bellas v. Graham, 259, 265.
Bell v. Fulmer, 274, 323.
Benfield’s Estate, 65, 82, 91, 96.
Bethel v. Lloyd, 271, 294.
Beyer vy. Reesor, 143, 154, 170.
Biddle v. Starr, 267, 278, 280, 283,
284, 286, 296.
Biggert v. Biggert, 140, 197.
Biggert’s Estate, 198, 234.
Bigley v. Jones, 33, 197, 198, 349.
Bile’s Appeal, 223, 227, 2380.
Birth’s Estate, 23, 87.
Bishop’s Appeal, 39, 42, 65, 79, 80,
Blackwell vy. Cameron, 291, 292,
296.
Blanchard v. Commonwealth, 68,
142, 148, 154, 159, 215.
Blewett v. Coleman, 255.
Blocher v. Carmony, 118.
Bloodgood’s Estate, 205, 208.
Borland v. Murphy, 162, 340.
Borschill’s Estate, 39.
Bowman’s Appeal, 197.
Boyer’s Estate, 14, 91, 225, 226,
230, 282.
Brader’s Estate, 33, 60.
Bradfords v. Kents, 40.
Bratton vy. Mitchell, 164.
Breneman’s Estate, 33, 63.
Brooks v. Smyser, 140, 156, 187.
Brown y. Adams, 275.
Brown vy. Boyd, 250, 270, 304.
Brown yv. Lutheran Church, 255,
294, 296.
Browne v. Brown, 254, 325, 329.
Brown's Appeal, 1, 2, 275, 340.
Brown’s Estate, 229, 232.
Bryar’s Appeal, 340.
Butler’s Estate, 203.
Byers v. Byers, 261, 264.
Cc.
Caldwell v. Snyder, 16, 18, 214,
338, 340, 344, 364, 365, 367.
Campbell’s Hstate, 222, 225, 230.
Carr’s Estate, 90.
Carothers’ Estate, 80, 91, 92, 93.
1X
x CasEs
Cassaday’s Estate, 17, 37, 44, 58,
59.
Casa’s Estate, 36.
Christy’s Appeal, 12, 55, 56, 73, 79,
80, 85, 87, 99, 118, 247.
Church y. Ruland, 338.
Church’s Appeal, 338, 344, 347, 349,
362,
Clark’s Estate, 21, 38, 61, 62.
Clawges v. Clawges, 1, 250, 306.
Cleman’s Appeal, 340, 354, 360.
Clever’s Estate, 124.
Coleman y. Coleman, 250, 255, 264,
274, 280, 298, 294, 297.
Coleman y. Grubb, 255.
Coleman’s Appeal, 255, 294.
Collins v. Dougherty, 2, 14.
Comfort’s Estate, 65, 77, 78.
Commonwealth vy. Haffey, 160, 170,
278, 316.
Commonwealth vy. Hantz, 116, 141,
149, 158, 159, 254, 329.
Commonwealth y. Lightner, 155.
Commonwealth v. McIntyre, 142,
158, 254,
Commonwealth v. Pool, 30, 202.
Commonwealth vy. Rodgers, 31, 181,
201, 202, 205.
Commonwealth v. Royer, 316, 317.
Commonwealth y. Shuman’s Admr.,
143.
Conrow v. Conrow, 338.
Cote’s Appeal, 29, 88, 89, 41, 45.
Cowan’s Appeal, 11, 12, 18, 36, 38,
116, 117, 219, 252, 282, 341, 355.
Cubbage v. Nesmith, 42, 47, 112,
117, 188, 148, 150.
Culp’s Estate, 180, 181, 201,
224, 225, 227, 230.
Culver’s Estate, 34, 63, 201,
227.
Cummisky v. Cummisky, 278,
299, 301, 314, 324, 325, 331.
Crawford v. Crawford, 149, 159.
223,
208,
292,
D.
Dana vy. Dana, 337.
Dana v. Jackson, 250, 252, 298, 299,
803, 309, 311, 312.
Danhouse’s Estate, 39, 40, 41, 42,
51, 104, 106, 115, 137.
Darrah’s Appeal, 98, 99, 247.
Datt’s Estate, 215.
Davis v. Dickson, 98, 115, 240.
Davis’ Hstate, 1, 82, 34, 47, 48, 61,
64, 69, 74, 77, 85, 98.
Davis v. Houston, 242.
Davis v. Norris, 266, 306, 310, 313,
316, 317, 327.
Crrep.
Davis v. Reeves, 251, 253, 269, 278.
Dech’s Estate, 17, 214.
Dech v. Gluck, 88, 89, 96, 113, 164,
165, 167, 176.
De Haven vy. Bartholomew, 136,
154, 187.
Deitz v. Beard, 136.
Denning’s Estate, 42, 56, 68, 70.
Deshong v. Deshong, 45, 266, 268,
279, 295.
Deshong’s Estate, 37.
Devlin’s Estate, 202, 203.
Dewar v. Spence, 264, 286, 288, 301,
803, 318, 319, 320.
Dewart v. Purdy, 106, 252, 291, 300,
312, 313.
Deysher v. Griesemer, 170.
Dickinson v. Beyer, 136.
Dickinson’s Estate, 205, 217.
Diefenderfer v. Eshleman, 42, 136,
154, 185, 186.
Diermond vy. Robinson, 147, 254.
Dodson’s Estate, 142, 172, 173.
Donaghy v. Gill, 45, 148, 144, 154.
Donaghy’s Estate, 45, 46, 144.
Donaldson’s Estate, 112, 124, 217.
Dornblaser’s Estate, 143, 146, 235.
Doyle v. Brundred, 337, 368.
Dreisbach’s Appeal, 161.
Dresher v. Allentown Water Co.,
30, 42, 146.
Drum’s Estate, 58.
Duey v. Clemens, 96, 165.
Duke v. Hague, 54, 249, 270, 271.
Dull’s Appeal, 38, 102, 124, 128.
Dundas’ Appeal, 48.
Dutch’s Appeal, 140, 143, 145, 216,
242,
E.
Earle v. Earle, 322, 323.
Ebbs v. Commonwealth, 96, 143,
149, 156, 219.
Eberts v. Eberts, 38, 116, 143, 219,
2384.
Eberts v. Wood, 260, 293.
Eby’s Appeal, 89, 124.
Eby’s Estate, 47, 53, 118, 121, 127,
129, 225, 232, 285.
Eckert v. Yous’ Admr., 119, 247.
Edwards y. Hoopes, 164, 167, 250,
252, 296, 299, 808, 816.
Eell’s Estate, 32, 34, 39, 86.
Elliot v. Elliot, 55, 58, 76, 83.
Ellis v. Ellis, 354, 358.
Bnyard v. Enyard, 364.
Erb vy. Erb, 198.
Erb v. Houston, 167.
Erisman’s Estate, 33, 48, 63.
Eroh’s Estate, 174.
Caszes CrTep.
Eshleman vy. Witmer, 139, 140, 181,
191, 210.
Evans’ Appeal, 112.
Evans vy. Evans, 2, 24.
Evans v. Ross, 41, 119, 121, 187,
154, 155, 160, 162.
Ewing v. Houston, 26+, 296, 302.
Eyerman y. Detwiller, 125, 312, 314.
F.
Feather v. Strohecker, 24, 240, 261,
294, 329.
Ferree v. Commonwealth, 41, 193,
233, 234.
Fidelity Ins., ete., Co.’s Appeal,
228, 224, 225, 227, 229, 357.
Field’s Estate, 41, 189.
Fitzgibbons v. Keller, 326.
Flaherty’s Estate, 32, 63.
Fleming v. Kerr, 259, 260.
Fleming v. Rouch, 2, 269, 275, 318,
314, 319, 328.
Fogelsonger v. Somerville, 96, 118,
119.
Franks v. Groff, 158.
Fretz v. Heller, 165.
Frohock v. Gustine, 274, 298, 299,
300.
Fromberger v. Greiner, 40, 207, 233,
826, 368.
Fulton vy. Miller, 326, 368.
G.
Galbraith v. Bowen, 347, 363, 366.
Galbraith v. Galbraith, 68, 69, 88,
144, 157, 215, 259, 274, 280.
Gallagher’s Estate, 2, 14, 110.
Geibler’s Estate, 114, 115, 123, 127.
Gelbach’s Appeal, 116, 143.
Gesell’s Appeal, 38, 62, 246, 247.
Gheen y. Osborn, 162.
Gibbons’ Appeal, 341, 354, 359, 360.
Giddings’ Appeal, 183.
Giffen’s Estate, 65, 82, 87, 94.
Gilmore vy. Commonwealth, 150.
Ginnis v. Davis, 204, 211.
Girard Life Ins. Co. vy. Farmers &
Mechanics’ Nat. Bank, 211, 251,
254, 269, 276, 277, 278, 279, 280,
283, 286, 296, 301, 322, 325, 331.
Goepp’s Appeal, 108, 158, 170, 176,
182, 254. ’
Good v. Good, 187, 141, 143, 154,
155, 157.
Gourley v. Kinley, 2, 91, 115, 186,
163, 164, 251, 275.
Graham's Estate, 77, 224, 225, 227,
230, 257.
X1
Gratz v. Gratz, 251, 252, 254, 260,
264, 294.
Gratz v. Lex, 338, 341, 355, 357, 358,
361, 364.
Gregg’s Appeal, 107, 111, 130, 132,
176, 247.
Greiner’s Appeal, 217.
Griffith v. Phillips, 341, 355,
861, 362.
Groff v. Groff, 329.
Gross’ Estate, 53, 55.
Grubb vy. Grubb, 264, 295, 296, 297,
303, 306, 318.
Grubb’s Appeal, 223, 224, 225, 228,
274.
Gutschall vy. Goodyear, 170.
356,
EH
Hageman y. Esterly, 136, 137, 184.
Hanbest’s Estate, 2, 60, 87, 3388,
346.
Hancock’s Estate, 152, 153.
Hancock v. Watson, 364, 365.
Haudenscheid vy. Haudenscheid, 84.
Hanna v. Clark, 337, 339, 346, 352,
355, 368, 367.
Harlan vy. Langham, 33, 119, 215,
219, 221, 234, 265, 280.
Harnish’s Estate, 121, 143.
Harrison’s Estate, 32, 33, 42, 43.
Harrold vy. Lane, 197, 198, 219.
Hasson v. Hasson, 352, 354, 356.
Haven vy. Bartholomew, 140.
Hawk v. Geddis, 116, 140, 186, 210.
Hawk v. Jones, 258, 254, 296, 297,
312, 320.
Hayes’ Appeal, 34, 337, 388, 339,
347, 349, 368.
Hays’ Appeal, 119, 156, 194, 195,
247.
Heft’s Estate, 223, 246.
Heist v. Baker, 154.
Heller’s Appeal, 184.
Heller’s Estate, 30, 49, 73, 144, 148,
161, 176, 254.
Herr v. Herr, 115, 238, 291, 293, 296,
298.
Hersha v. Brenneman, 42, 96, 111.
Hertz’s Estate, 114, 115, 123.
Hess’ Appeal, 247.
Hillbish’s Appeal, 139, 149.
Himelspark’s Estate, 57, 116, 209.
Hise v. Geiger, 135, 140, 154, 155,
156, 177, 181, 187, 190, 192.
Hoffer v. Wightman, 47, 97, 117,
118,. 148, 149.
Hollenberger v. Yaukey, 164, 165,
167.
Hollinger’s Estate, 156, 165.
.
xil CasEs
Holman’s Appeal, 119, 143, 149.
Holmes v. Fulton, 266, 268, 269,
840, 341, 364, 366.
Holmes v. Woods, 44, 270, 272, 273.
Homiller’s Estate, 225, 230.
Honnett y. Thompson, 340, 357, 358.
Horam’s Appeal, 42, 247.
Horam’s Estate, 60, 104, 126.
Hough’s Estate, 246.
Houselton v. Weisman, 242.
Hubley v. Hamilton, 133, 143.
Hughes’ Appeal, 217.
Hummel’s Appeal, 205, 223, 226,
227.
Hunsecker’s Estate, 87, 45, 46, 56,
220.
Huselton v. Weisman, 12.
Hutchinson’s Appeal, 20.
Jv.
Janney’s Estate, 39, 84.
Jevons v. Kline, 246, 354, 355, 358,
866, 368.
Johnson vy. Matson, 47, 115, 117,
119, 149.
Jones’ Estate, 70, 79, 82.
Joyce’s Estate, 21.
ir;
Ihmsen vy. Ormsby, 34, 220, 221,
237.
K.
Kann’s Estate, 42, 65, 156, 170, 171,
192, 201.
Karstein v. Bauer, 154, 182, 184.
Kates’ Appeal, 61.
Kates’ Estate, 34, 38, 64.
Kean v. Ellmaker, 141, 159.
Kean y. Franklin, 140, 143, 149.
Kean v. Ridgway, 47, 108, 115, 116,
117, 118, 119, 149, 219.
Keisel v. Earnest, 251, 274, 277,
296, 320, 326.
Keisel’s Appeal, 35, 45, 107, 220.
Kelly v. Thomas, 32.
Kelsey’s Appeal, 53, 355, 357, 368.
Kennedy v. Kennedy, 334.
ia Estate, 204, 205, 211, 234,
55.
Kidd v. Commonwealth, 42, 154,
ae 157, 159, 160, 176, 179, 207,
Kiegel’s Appeal, 34, 61, 247.
Kille v. Ege, 66, 220.
Kinzer v. Mitchell, 254.
Kirchner’s Estate, 20.
Kletzly v. Marks, 349.
Kline v. Bowman, 96, 140, 154, 167,
177, 181, 186, 187, 190, 193.
CIrep.
Kline v. Grayson, 112.
Kline’s Appeal, 21.
Kline’s Estate, 91.
Klingensmith’s Estate, 50, 70, 72,
79, 85, 116, 123, 227.
Klinger v. Seiwell, 30, 235, 312, 314,
815, 317.
Klohs v. Reifsnyder, 124, 125, 126,
252, 257, 264, 274, 291, 293, 296,
312, 313, 314, 316, 318.
Knauss’ Estate, 38, 121, 137, 141,
146, 158, 159.
Knight v. Banes, 163.
Korn’s Estate, 77.
Kreider’s Appeal, 247.
Kreider’s Estate, 42, 65, 79, 84.
Krug v. Keller, 73, 102, 204, 211.
Kunselman v. Stine, 65, 91, 186, 139,
163, 176, 177, 187, 190, 192, 193.
Kurtz’s Appeal, 135.
L.
Lafferty v. Beale, 291, 292, 295.
Lair v. Hunsicker, 26, 34, 47, 252.
Laird’s Appeal, 223, 228.
Lancaster v. Flowers, 352, 355.
Landmesser’s Estate, 56, 74, 87.
Larkin’s Estate, 20.
Latshaw’s Appeal, 253, 256, 346,
352.
Law v. Patterson, 252, 259, 260, 264,
298, 294.
Lawson’s Estate, 170.
Lee’s Estate, 36, 45, 60, 61, 193.
Leibert’s Appeal, 141, 146, 150, 159.
Lentz v. Hertzog, 216.
Leshey v. Gardner, 198.
Lewis’ Appeal, 214.
Lewis v. Lewis, 164.
Leyrev’s Estate, 14, 15.
Light v. Zeller, 119, 120, 121, 133,
142, 148, 161.
Light’s Estate, 217.
Lippincott’s Estate, 14, 39, 40.
Lockhart v. Power, 250, 275, 294.
Lowrie’s Estate, 6, 10, 197.
Long’s Appeal, 30, 31, 48, 54, 61,
112, 254, 278.
Longwell y. Bentley,
278, 293, 294.
Love v. Overholt, 293, 296.
Lowry’s Appeal, 34.
Lucas’ Appeal, 190, 191, 201, 205.
Lucas v. King, 347.
Luther v. Wagner, 136.
Luzerne B. & S. ssn. v. People’s
Bani: 22, 220, 228.
Lynch v. Lynch, 340, 352, 355, 358,
359, 864, 365.
252, 255, 259,
Casrs CrrTep.
M.
McAvoy’s Estate, 206.
McCall’s Appeal, 39, 41, 50, 80, 91.
McCandless’ Appeal, 30, 48, 54, 93,
112, 149, 254, 278, 334, 345, 357.
McCarty v. Gordon, 140.
McClure v. McClure, 235, 251, 252,
275, 279, 294, 327.
McCorkle’s Estate, 34, 48, 63, 64.
McCoy’s Bstate, 52, 55.
McCrystal’s Estate, 38, 202.
McCullough v. Wallace, 47, 117.
McCune’s Appeal, 156.
MclIntosh’s Estate, 11, 38, 45, 50,
116, 123.
McKee v. Straub, 250, 269, 271, 293.
McLanahan v. McLanahan, 252.
McLanahan v. Wyant, 30, 301.
McMahan v. McMahan, 259.
McMasters v. Carothers, 32, 42, 67,
86.
McMasters vy. Chalfant, 99.
McMichael v. Skilton, 2, 323, 324.
MecMillan’s Appeal, 119, 148.
MecNickle v. Henry, 2, 14, 28, 40,
91, 333, 340.
McPherson vy. Cunliff, 238.
McRee’s Estate, 194, 197, 198.
Machette’s Estate, 5, 80, 122, 255.
Maloy v. Terhorst, 352, 355, 361.
Mann’s Appeal, 135.
Mark v. Mark, 254, 276, 278.
Macmunn vy. Haverkamp, 341, 352,
366.
Marcy’s Estate, 30, 51, 56, 212.
Martin v. Martin, 259, 292, 294.
Martin’s Estate, 41, 137, 232.
Mason’s Appeal, 42, 65, 87, 88, 96,
98, 101. 108, 111, 112, 122, 126,
127, 312.
Massacer’s Estate, 69, 87, 93, 95.
Mealy’s Estate, 42, 48, 64.
Medlar v. Aulenbach, 135, 136, 137,
140, 166.
Mehaffy v. Dobbs, 143, 148, 158, 238,
239.
Mellon’s Appeal, 30.
Mercur v. Jackson, 2, 334, 339, 342,
348, 349, 359, 364.
Merklein v. Trapnell, 38, 42, 52, 77,
111, 233.
Messenger vy. Kintner, 65, 82, 237.
Michael v. Skilton, 322.
Miller v. Leidig, 136.
Miller vy. Lindsay, 135.
Miller vy. Schneider, 252, 254, 258,
274, 280, 296.
Miller’s Appeal, 196, 197, 247.
Miller’s Estate, 212.
X11
Milligan’s Appeal, 96, 117, 119.
Mitchell v. Harris, 31, 251, 267, 295,
296, 324.
Mitchell v. Kinzer, 254.
Monestier v. Monestier, 223,
225.
Moorhead v. Commonwealth,
183, 184.
Morrow v. Morrow, 271, 275,
301, 303.
Mount’s Estate, 174.
Murphy v. Borland, 162, 340.
Murray’s Hstate, 217.
Meyer’s Estate, 182, 142, 148, 176.
224,
181,
285,
N.
Neeld’s Appeal, 39, 40, 178, 180, 182,
192, 193, 196, 247, 254.
Neel’s Appeal, 171, 172, 173.
Negley’s Estate, 37, 45.
Newell v. Clark, 361.
Newman vy. Rutter, 265.
Nichols vy. Rummel, 154, 157, 159.
Nissley v. Heisey, 170, 171.
Nixon’s Estate, 2.
oO.
Old Man’s Home vy. Penna. Institu-
tion for the Instruction of the
Blind, 232, 338, 341, 348, 354, 356,
357, 364.
Osborne’s Appeal, 127.
Osborne’s Estate, 128.
Oviatt’s Estate, 172, 178, 174.
Oyster v. Oyster, 216.
Pp.
Painter v. Henderson, 39, 115, 123,
241.
Palethorp v. Palethorp, 337, 340,
841, 352, 353, 354, 355, 364, 365,
366.
Patterson v. Laming, 250, 329.
Pauley v. Pauley, 156.
Penna. Annuity Co. v. Vansyckel,
189, 187.
Pereyra’s Appeal, 223, 229, 352.
Phillips’ Estate, 7, 8, 9, 10.
Phillips v. Gregg, 216.
Phila. & R. R. R. Co. v. Common-
wealth, 116, 143, 154.
Pideock v. Bye, 42, 189, 154, 165.
Playford’s Estate, 226, 231, 247.
Pother vy. Burd, 329.
Poundstone v. Everly, 66, 91, 93.
Powell’s Estate, 47, 55, 121.
Power v. Power, 250, 253, 274, 276,
277, 292.
Powers’ Appeal, 215, 217.
xiv CASES
Pringle vy. Gaw, 164.
Pugh's Estate. 18.
Purcell v. Purcell, 364.
Pyle’s Appeal, 1u2, 176, 177, 178,
180, 182, 247.
Q.
Quigley y. Commonwealth, 46, 168.
R.
Ragan’s Estate, 43. 50. 61, 70, 72,
73, T4. $5, 111, 215, 302.
Randolph's Appeal, 191.
Rangler y. Hummel, 279.
Rainey y. H. C. Frick Coke Co.,
851, 852, 355.
Rankin’s Appeal. 11. 14. 87, 47, 50,
86. ST, 91, 92, 112, 114, 115, 116,
117, 123, 127, 188, 247.
Rankin’s Estate, 18, 15, 48.
Rasley's Estate, 100.
Rawle’s Appeal, 11, 28, 48, 179, 247,
845, 357.
Reed vy. Hollibaugh, 201, 203.
Reed v. Lafferty, 317.
Reese v. Pye, 204, 255, 861.
Reid vy. Clendenning, 16, 51, 73, 74,
77, 103, 107, 179, 197, 214.
Reigart v. Ellmacher, 141. 143. 149.
154. 159.
Reigle v. Seiger, 164. 165, 166.
Rex vy. Rex, 3. 82, 36, 42. 55, 60,
61, S1. §2. 96, 220, 247, 265.
Rhoades’ Estate. 329.
Roads’ Fstate, 254.
Richards’ Estate, 32, 68. T4.
Richards v. Rote. 50, 61, 75. 76,
Riddle’s Appeal, 112, 183, 142. 143,
148, 149.
Robins vy. Green, 2.
Robinson's Appeal,
Robisson y. Miller,
1G, 235.
Romig’s Appeal, 24.
Ross rv. Plensants,
ans. 24, S28,
Roup’s Estate, 31.
Ruffell’s Estate, 16.
Rush’s Appeal, 194.
247, 254.
30, 96, 107, 108,
35
2
OL, 274, 280,
5.
Sampson's Appeal, 93, 94, 97, 112,
114, 115, 118.
Sampson's Estate, 34. 61, 62. G4.
Sankey’s Appeal, 63, 102, 103, 107,
1138, 128, 129, 153.
CITED.
Sehall’s Estate, 136.
Scheible’s Estate, 11, 12, 180.
Schellinger’s Estate, 43, 56.
Scherr’s Estate, 60, 176, 198,
208.
Schmid's Estate, 213, 234.
Schmidt's Estate, 13, 35, 220.
Schwartz v. Hepler, 295.
Seott’s Case, 198.
Seott’s Estate, 156, 234,
Seaton y. Barry, 147, 159, 251, 254,
260, 277, Rue, 299, 316, 317, 318,
329.
Seiders v. Giles, 37, 45, 270.
Seider v. Seider, 1, 38, 41, 81, 92,
163.-
Seitzinger v. Ridgway. 267.
Selfridge’s Appeal. 11, 15, 86.
Shaffer v. Shaffer, +40.
Share vy. Anderson, 149, 156.
Shaupe vy. Shaupe. 135, 186.
Shaw's Estate, 250.
Shaw y. Irwin, 330.
201,
Shearer's Appeal, 41, 183, 187, 144.
Shearer's Estate. 144.
Shea's Appeal, 340.
Sheetz v. Emerick, 289.
Shelly y. Shelly, 96, 1386, 140, 142,
154, 164.
Sheridan vy. Sheridan, 17, 333, 344,
864, 365.
Sherr's Appeal, 66.
Shertzer v. Herr, 154.
Shoemaker y. Everhart, 226, 229,
264.
Shoop’s Estate, 30, 202, 211.
Shoutiler y. Coorer, 136, 148, 162.
Shurlock vy. Smith, 140, 156.
Sill v. Blaney, 3838, 341, 342, 344,
848, 350, 852.
Simmons’ Estate. S87.
Simon y. Simon, 822, 828.
Simpson v. Thornton, 200, 326.
Skerrétt: v. Afoore, 223, 224, 225,
230.
Small's Appeal, 85, 88, 148, 221.
Smith v. Seudder, 118, 188, 285.
Smith's Estate, 33, 35, 37, 45, 50,
22s
Smyrser’s Estate, 164.
Snevily v. Wagner, 47, 117, 118, 170,
176, 235,
Snively v. Commonwealth,
Snively’s Estate. 124. 149,
Snodgrass’ Appeal, 247.
Snowden vy. Dunlavy, 274, 275, 284,
285, 296, 299.
Snyder's Appeal. 1. 27, 177,
by 227, 251.28,
S24. 325.
241.
201,
CasEs
Snyder’s Estate, 24, 80, 85, 156, 168,
170.
Soley’s Hstate, 136, 186.
Spangler v. Rambler, 164.
Spangler’s Appeal, 36, 170, 176, 234.
Sproule y. Stratton, 359.
Stahl’s Estate, 361.
Stark’s Estate, 18, 60, 79, 81, 82,
84, 99.
Stecker v. Shimer, 140, 166.
Steel’s Appeal, 14, 39, 86, 91, 115,
176, 209, 211, 254.
Stewart v. Allegheny National
Bank, 25, 26, 30, 48, 54, 112, 147,
211, 334.
Stewart v. Baldwin, 330.
Stewart v. Brown, 252,
274,
Stewart v. Martin, 154, 157, 159,
160.
259, 265,
Stewart v. Miller, 77, 266, 269, 274,
279, 318, 316, 329.
Stewart’s Appeal, 12, 43, 112, 176,
193, 194, 247.
Stilson v. ought, 14.
Stockham vy. Stockham, 344, 346,
352.
Stokes’ Hstate, 341, 344, 352, 355.
Stoner’s Estate, 205, 207.
Stoolfoos vy. Jenkins, 47, 115, 117,
119.
Stover v. Stover, 359, 361, 363.
St. Peter’s Church y. Zion Church,
330.
Strohcecker v. Housel, 261, 294, 329.
Summerville’s Estate, 201, 215, 242.
sutton’s Appeal, 111, 112, 118, 125,
126, 127, 148, 151.
Sutton’s Estate, 201.
Swain v. Iidelity Ins. Co., 77, 250,
251, 276, 277, 285, 201, 322, $23.
Swayze v. Ormsby, 274, 275, 280,
295, 296.
Sweeny v. Meany, 265, 288, 323.
Swoyer v. Schaeffer, 256, 346, 364.
T.
Taggart v. Cooper, 141, 142, 143.
Taggart’s Appeal, 14, 86, 87.
Taylor’s Appeal, 177, 178, 179, 247.
Thomas’ Appeal, 47, 61, 62, 63, 247.
Thompson v. Morrow, 84.
Thompson vy. Simpson, 1, 115, 135.
Thompson v. Stitt, 38, 42, 43, 47, 51,
77, 112, 115, 117.
Thompson’s Appeal, 217.
Thompson’s Estate, 27.
CITeEp. XV
Tospon vy. Sipe, 136.
Totten’s Appeal, 116.
Township of Butler vy. Morgan, 316,
828.
Transues’ Estate, 30, 177, 180, 181,
182, 201, 203, 206.
Turner v. Hauser, 163.
U.
Unangst v. Kraemer, 102, 104, 139,
154, 156, 190, 182.
Updegrove v. Updegrove, 128, 165.
Vv.
Van Emon’s Estate, 103.
Vensel’s Appeal, 60, 61, 77, 104, 106,
115, 180, 186, 191, 237, 247.
Vidal v. Girard, 278, 285, 320.
Vowinckel v. Patterson, 12, 240.
Ww.
Wagner v. Grubb, 167.
Wagner v. Hoopes, 165.
Wagner's Estate, 156, 172.
Walker v. De Haven, 141, 156.
Walker v. Dilworth, 269, 292, 295.
Waln’s Appeal, 11, 38, 55, 63, 92.
Walters’ Estate, 170.
Walton vy. Willis, 57, 70, 72, 73, 92,
111, 140, 149, 234, 302.
Wayne vy. Duffee, 298, 300.
Welch’s Appeal, 32, 538, 74, 75,
85, 86.
Welch’s Estate, 64, 73, 227.
Weiser v. Weiser, 250, 329.
Welty v. Ruffner, 108, 236.
Wentz’s Appeal, 108, 112, 156.
Werkheiser vy. Werkheiser, 57.
Wetherill v. Keim, 263, 266, 274
280, 296, 299, 3038, 304, 308.
Wetherill v. Mecke, 282.
Wis eulld v. Warner, 251, 808, 311,
315.
White vy. Commonwealth, 12, 148,
146, 154, 219.
White v. White, 42, 65, 67, 71, 79,
82, 85, 87, 247.
White v. Williams, 42, 97.
White’s Appeal, 7, 36, 220.
White’s Estate, 2, 4, 5, 6, 8, 9, 10,
220.
Whiteman’s Appeal, 195.
Whitman y. O’Connor, 99, 125, 274,
308, 309, 311.
Wickersham v. Young, 279, 281.
Wilhelm’s Estate, 25, 26.
Willard y. Norris, 325.
XVi Caszs
Williams’ Appeal, 64, 359, 360, 361.
Williams’ Estate, 223, 232.
Williams v. Landman, 382, 233.
Williams v. White, 135, 164.
Willing v. Brown, 253, 274, 339.
Wilson’s Appeal, 26, 204, 207, 212.
Wistar’s Appeal, 38, 85, 44, 47, 65,
66, 68, 69, 93, 94, 95, 108, 191, 201,
203, 205, 208, 227, 247.
Wistar’s Estate, 32, 54, 55, 56, 60,
61, 64, 211, 221.
Withers’ Appeal, 211, 234.
Wittmer v. Bain, 341, 357.
Wolf v. Borngresser, 289, 296, 313.
Wolfe’s Estate, 1, 37, 44, 45.
Wolfe’s Estate, 37.
Woodrow’s Estate, 171, 172.
ee v. Worthington,
31,
Crrep.
Wright v. Vickers, 211, 251, 255,
296, 325.
Wynn v. Brooke, 133.
Ws
Yohe v. Barnet, 170. 217.
York Borough v. Welsh, 139, 163,
187.
Young v. Babilon, 25, 238.
Young v. Bickel, 38, 39, 68, 79, 80,
91, 92, 94, 135.
Young y. McIntyre, 279.
Z.
Zacharias’ Estate, 160.
Zerphy’s Estate, 213.
Zimmerman v. Butler, 359.
Zittle’s Estate, 49, 205.
PART I.
PARTITION IN ORPHANS’ COURT.
CHAPTER I.
JURISDICTION OF ORPHANS’ COURT.
Origin of the Orphans’ Court’s jurisdiction.
All jurisdiction of the Orphans’ Court is the result of consti-
tutional or statutory legislation. “It is not,” said Strong, J.,
in 1860, “a court of general jurisdiction. The law has con-
ferred upon it only limited powers. Thus it is only in certain
cases of joint tenure, that it is authorized to make partition.
What these cases are, is well defined in the acts of Assembly
which have conferred upon the court its powers, and to these
acts we must look, rather than to our conceptions of what
might be convenient. Unless the power to make partition in a
particular case is there found, the court does not possess it.’
Several acts of the eighteenth and of the early part of the
nineteenth century, had conferred on the Orphans’ Court this
power in certain cases. Of these acts, various sections of the
act of March 29, 1832, are substantially a resumé. To this
act and various later acts we are to look as the repository of
the powers of the Orphans’ Court for the effecting of parti-
tions.
Concurrent jurisdiction.
Under the twenty-second section of the act of April 19, 1794,
the Orphans’ Court received exclusive jurisdiction over the
partition of the land of an intestate,” though in cases of testacy,
and in all other cases, it had no jurisdiction at all. This policy
was continued under the act of March 29, 1832.3 It was not
1Snyder’s Appeal, 36 Pa. 166; 3Clawges v. Clawges, 2 M. 34;
Wolfe’s Estate, 22 Pa. C. C. 340. Davis’ Estate, 9 W. N. C. 380;
2Clawges v. Clawges, 2 M. 34. Cf. Brown’s Appeal, 84 Pa. 457.
Seider v. Seider, 5 Wh. 208; Thomp-
son v. Simpson, 3 Pa. 60.
2 Partition In Orpuans’ Court.
changed by the act of April 1, 1837, which simply validated
proceedings theretofore begun in the District Court, but did
not authorize the future commencement of proceedings in that
court.* Hence, the purchaser at a sale in partition of the estate
of an intestate, in the District Court, in 1845, could defend an
action for the purchase money on the ground that he would
acquire no title to the land.° The first section of the act of
April 21, 1846, destroyed the exclusiveness of the jurisdiction
of the Orphans’ Court, saying, “ Nothing contained in the act
entitled ‘An act relating to Orphans’ Courts,’ passed March
29, 1832, shall be construed to give to the Orphans’ Courts of
this commonwealth, exclusive jurisdiction in the partition and
valuation of the real estate of intestates, or to prevent any of
the parties interested in such real estates from proceeding, by
action of partition, in the other courts of this commonwealth,
which have jurisdiction of the action of partition.” Since the
passage of this act® partition of an intestate’s lands can be
carried on either in the Orphans’ Court or in the Court of
Common Pleas,” except when the widow, claiming against the
will of her husband, proceeds to have her dower set apart under
the act of April 20, 1869.8 In such case, the jurisdiction of the
Orphans’ Court is exclusive.®
When jurisdiction has attached.
If proceedings for partition have been begun in the Common
Pleas, at law or in equity, in cases within their jurisdiction, a
petition, subsequently presented to the Orphans’ Court, for a
partition of the same lands between the same parties, will be
dismissed, on an answer disclosing the fact.!° When the
Orphans’ Court had exclusive jurisdiction, as under the act of
April 19, 1794, the fact that an action of partition had been
4McMichael v. Skilton, 13 Pa.
215; White’s Estate, 14 Pa. C. C.
138.
5 McMichael v. Skilton,
215.
13 Pa.
6The third section of the act of’
March 17, 1845, conferred jurisdic-
tion in equity in all cases of dower
and partition upon the Common
Pleas of Philadelphia county, and
the Supreme Court for the eastern
Pha Brown’s Appeal, 84 Pa.
457.
7 Fleming v. Rouch, 2 Pears. 204;
Hanbest’s Estate, 6 D. R. 681;
Gourley v. Kinley, 66 Pa. 270;
Mercur v. Jackson, 3 Pa. C. C. 387.
81 P. & L. 1682.
9 MeNickle v. Henry, 8 Phila. 87;
Gallagher’s Estate, 2 Foster, 155;
Robins v. Green, 1 W. N. GC. 143;
Collins v. Dougherty, 2 Luz. L. Reg.
194. The husband being a cotenant
with another, the widow could re-
sort to the District Court in 1847.
to have dower assigned. Evans v.
Evans, 1 Phila. 113.
10 Hanbest’s Estate, 6 D. R. 681;
Nixon’s Estate, 45 Pitts. L. J. 112.
JURISDICTION OF ORPHANS’ CouRT. 3
begun in the Common Pleas, could not oust such jurisdiction,
and would, therefore, be no reason for the dismissal of the
petition.”
Court of what county — Act March 29, 1882.
The thirty-sixth section of the act of March 29, 1832,”
enacts that “ The Orphans’ Court of the county where the real
estate of a decedent is situate, shall have power, on the appli-
cation of the widow or any lineal descendant of the decedent.
having an interest in such real estate, if of full age, or if under
age, on the application of his guardian, to appoint seven or
more disinterested persons, chosen on behalf and with consent
of the parties, or, when the parties cannot so agree, to award
an inquest, to make partition of the real estate of such
decedent, and upon the return made by the persons so ap-
pointed, or of the inquisition taken, to give judgment that the
partition thereby made be firm and stable forever, and that the
costs thereof be paid by the parties concerned.” Under this
section, the Orphans’ Court of the county in which the land
lies, has the jurisdiction to make partition of it.
Land in two or more counties.
The decedent may have lands lying in different counties.
For such a case, the forty-fourth section of the act of March
29, 1832,"* makes provision in these words: “ Where the lands,
in respect to which application for partition shall be made to
the Orphans’ Court as aforesaid lie in one or more adjoining
tracts in different counties, it shall be lawful for the Orphans’
Court of the county in which the principal mansion is situate,
or if there be no mansion or building on the lands, then the
court of the county in which the greatest part of the land lies,
on the application of any person interested, either to proceed
by the appointment of seven or more men agreed on by the
parties, or to issue their writ to the sheriff of the county within
the jurisdiction of the court, specifying the lands of which a
partition or valuation is to be made, and thereupon the said
sheriff shall summon an inquest to divide or value the said
lands, in the same manner as if the whole were within his
proper bailiwick, and upon the return thereof, or upon the
return of the seven or more men appointed by consent, as.
11 Rex v. Rex, 3 8. & R. 533. 132 P. & L. 3378; 1 Br. Purd. 603.
122 P. & L. 3363; 1 Br. Purd. 603.
4 Partition 1x OrpHans’ Court.
aforesaid, the court may further proceed therein in all respects
as if all the said lands were in the proper county, and any
recognizance taken in pursuance of such proceedings shall be
as effectual, to all intents and purposes, as if the lands bound
by it were wholly within the county where such recognizance
is taken.” The forty-fourth section of the act of March
29, 1832,"* further directs that “ An exemplification of the
proceedings which may be had, shall, within twenty days
after the final decree therein, be delivered to the clerk of
the Orphans’ Court of each county in which the application
shall not have been made, and in which any part of the said
lands are situate, which shall be entered on the records of
such court, at the joint expense of all parties concerned.”
Under the act. of March 29, 1832, then, partition could be
made by the Orphans’ Court of any county, only of lands lying
within that county, with one exception. If the decedent had a
tract of land lying in part in two counties, the Orphans’ Court
of that county in which the principal mansion was situate, or,
there being no mansion or building on the premises, of that
county in which the larger part of the tract lay, might make
the partition. It was “lawful” for it to do so. It does not
seem to have been necessary. Of disconnected lands, lying in
two counties, there was no authority to make partition con-
ferred on any one court.®
Land in different counties — Act February 20, 1854.
The first section of the act of February 20, 1854,!° directs
that “ All the courts of this commonwealth now having juris-
diction in matters of partition, shall have power to entertain
suits and proceedings, whether at law or in equity, or other-
wise, for the partition of real estate, or the recovery of dower,
or the widow’s third or other part, although the lands to be
divided or recovered, may lie in one or more counties of this
commonwealth: Provided, That such proceeding, intended to
embrace lands in more than one county, shall be brought only
in the county where a decedent, whose land is to be divided,
had his domicile, or where the homestead, or larger part of
the estate,in value, shall be situated; and service of process may
be made by any sheriff where real estate to be divided shall be
situated, or any defendant may be found; and exemplifications
142 P. & L. 3378. “An act relative to suits i
15 White’s Estate, 14 Pa. C. C. 138. and partition.” renee wings
162 P. & L. 3389; 1 Br. Purd. 605.
JURISDICTION OF ORPHANS’ CouRT. 5
of the record may be filed in every county where such real
estate shall be situated, in such court thereof as shall cor-
respond in character to that of the court in which such pro-
ceeding may have taken place, and be received in evidence with
the like effect as the records of the court where filed, except
that any exemplification of the proceedings in the Supreme
Court shall be filed in the District Court or Court of Common
Pleas of the proper county.” This act apparently simply con-
fers power on the court of the county where the decedent had
his domicile, or where the homestead, or the larger part, in
value, of the estate lies, to make partition of all his lands, lying
in several counties, when the applicant for partition chooses
to embrace all these lands in his petition. It does not require
the petitioner to ask for a universal partition.”
Lands in different counties — Act April 17, 1856.
The first section of the act of April 17, 1856,"* declares that.
“The true intent and meaning of the act passed February 20,
1854, entitled ‘An act relative to suits in dower and parti-
tion,’ is hereby declared to be to include and embrace
all proceedings in partition instituted, or which may be
instituted, in the Orphans’ Court in any of the counties
of this commonwealth, for the partition or valuation of
the real estate of any decedent, in all cases where said
real estate is situate in two or more counties of this com-
monwealth. And that, in all such cases, all process, writs and
notices, required to be served personally upon any person or
persons interested in such proceedings in partition, may be
served by the sheriff of the county in which such proceedings
in partition have been instituted or commenced; and that the
jurors for making such partition or valuation -shall be selected
from the same county in which such proceedings are instituted.
Nothing in this act, or in the act aforesaid, passed February
20, 1854, shall be so construed as to prevent the parties inter-
ested in the partition of the real estate of any decedent, from
instituting proceedings in partition in the Orphans’ Court in
each county where such real estate is situate, except in cases
where such real estate consists of adjoining tracts or parcels of
land situate in different counties, if the Orphans’ Court of the
county in which the proceedings in partition are required by
17 White’s Estate, 14 Pa. C. C.138. Philadelphia and land in Mont-
In Machette’s Estate, 4 W. N. C. gomery county.
871, the partition embraced land in 182 P. & L. 3379; 1 Br. Purd. 605.
6 Partition in OrpHans’ Court.
the said act, relative to suits in dower and partition to be had,
shall so order and decree.”
Result of act of April 17, 1856.
The effect of this act is to require the partition of all the
lands of a decedent, though in several counties, by a proceeding
in the Orphans’ Court of the county in which was the domicile
of the decedent, or his homestead, or the larger part, in value,
of the estate, unless that court shall order and decree that a
petition for a partition of the lands lying in some other county
may be presented to the court of that other county.” If, for
example, the decedent was, at the time of his death, domiciled
in Franklin county, and owned lands in Franklin and in Phila-
delphia counties, the Orphans’ Court of the latter, could not
make partition of the lands therein, without the consent of the
Orphans’ Court of Franklin county. A petition being presented
to the Orphans’ Court of Philadelphia, the award of an inquest
was deferred until it should be made to appear that application
had been made to the Orphans’ Court of Franklin county for
leave to prosecute the proceedings in Philadelphia.” A rule
to show cause why leave should not be granted to maintain pro-
ceedings in partition in the Orphans’ Court of Philadelphia, be-
ing subsequently obtained in Franklin county, was discharged.
Says Stewart, J., in discharging the rule: “ Were this request
joined in by all the parties in interest, we should not think to
inquire whether such course would advantage the estate or not,
but would allow it as a matter of course. But it is resisted by
the widow, at whose instance the inquest was heretofore
awarded,” and who resides here. The controversy is between
her and the collateral heirs of the intestate. Such being the
case, no such order as is here asked for should be made except
upon cause shown. Having entered upon the partition of this
intestate’s real estate, the regular and orderly course would be
to complete it in the same court, and he who asks to interrupt
such proceedings ought, as against a protesting party, to show
how the general estate is to be advantaged by the change he
proposes.” A petition was afterwards presented to the Or-
phans’ Court of Franklin county for the partition unsuccess-
19 Lowrie’s Estate, 45 Pitts. L. J. lands lying in that county, and of
80; White's Estate, 14 Pa. C. C.138. some lands lying in Philadelphia.
20 White’s Estate, 14 Pa. C. C. 138. 22 White’s Estate, 14 Pa. C. C
_21 There had already been a par- 249 (1894). =
tition, in Franklin county, of the
JURISDICTION OF ORPHANS’ Court. 7
fully attempted in Philadelphia,™ and the partition was ef-
fected.™
Phillips’ Estate.
The control of the Orphans’ Court of the county of the
decedent’s domicile over partition of his lands lying in other
counties, was considered in Phillips’ estate. Moro Phillips,
domiciled in Philadelphia, owned lands in Philadelphia, and in
Montgomery and Delaware counties. A devisee commenced
proceedings in each of these counties, for the partition of the
lands lying respectively therein. The Orphans’ Court of Phila-
delphia county suspended proceedings on the petition before
it on the ground that complete partition of all the decedent’s
lands should be sought from the Orphans’ Court in that county,
or leave be obtained from it to make separate partitions. After
reciting the legislation, says Ferguson, J.: “The intention of
the Legislature was, no doubt, to give to one Orphans’ Court
the jurisdiction of the whole proceedings in any particular case,
so as not only to secure equality in partition, but to prevent
injustice and avoid the great confusion which would necessarily
follow if separate suits could be maintained in different counties
and before separate courts and juries about the same subject-
matter. The judgments of the different courts might conflict
with each other in various ways, and the parties interested be
prejudiced by sales where no sale need, perhaps, to have been
made, or their lands cut up and divided to their injury, where
some of those interested might have taken them as a whole, if
the partition had embraced all of the decedent’s possessions
without regard to county lines. The question of the costs of so
many suits is another important consideration. Decedents’
estates ought not, in their settlement, to be subjected to any
more expense than is absolutely necessary. Nor ought the
parties interested to be harassed and annoyed by suits all over
the State.”
Phillips’ Estate in Montgomery county.
A different view of its jurisdiction was taken by the Orphans’
Court of Montgomery county. That court awarded an inquest
for the partition of the lands lying within the county, finding
23 Of ground-rents on lands lying cerning the territorial jurisdiction of
in that city. the court.
24 White’s Appeal, 167 Pa. 206. 256 Pa. C. C. 449; 23 W. N.C.
The Supreme Court say nothingcon- 518; 19 Phila. 148.
8 Partirion 1x Orruans’ Court.
no obstacle in the acts of February 20, 1854, as construed by
the act of April 17, 1856, to the entertainment of jurisdiction,
although the Orphans’ Court of Philadelphia had insisted that
its consent was necessary to a separate partition of lands in
Montgomery county. Says Weand, J.: “ We fail to see why,
in any case, except that of single tracts lying in adjoining
counties, the court of the domicile or mansion-house should
be preferred. In case of insolvent estates, and where it may
be necessary to sell or mortgage to pay debts, there is great
propriety in such preference, because the lands are assets for
the payment of debts, and, as such, under the control of the
court of the county where decedent resided at the time of his
death. In cases of solvent estates, the land vests in the heirs
or devisees, who can convey without the intervention of the
court. Where they cannot agree, power is vested in the courts
to decree partition and sale. But why, in such case, should one
court be preferred to another, except in case of single tracts
lying in adjoining counties, where some particular court must
be selected? Assume a case of a decedent whose domicile was
in Philadelphia, and owning there a mansion worth a few thou-
sand dollars, and with valuable coal mines in Schuylkill, and a
valuable farm in Lancaster. When it is desired to have parti-
tion of the mines, or the farm or all the land, why should
Philadelphia, with, perhaps, no heirs living there, be preferred
as the place in which to institute the proceeding? As the
selection of the forum is only an arbitrary act, we may well
conclude that, in this course of legislation, it was intended to
confer jurisdiction upon either court, except in the one case of
adjoining tracts.”
Lands in different counties — Act March 30, 1869.
The first section of the act of March 30, 1869,” enacts that
“The true intent and meaning of the act, entitled ‘An act
relative to suits in dower and partition,’ approved February 20,
1854, and its supplement, approved April 17, 1856, is hereby
declared to be, to include and embrace all proceedings in parti-
tion necessary to be had, as well before as after the refusal of
the heirs to take real estate at the valuation, and the said courts
in which such proceedings are had are hereby authorized to
order the sale of such real estate after such refusal, in the
28 Phillips’ Estate, 6 Pa. C. C.499. Penrose, J., in White’s Estate, 14
Vide remarks on this decision, by Pa. C. C. 138, 142.
272 P. & L. 3389; 1 Br. Purd. 605.
JURISDICTION OF ORPHANS’ Court. 9
same manner as if all the real estate were situated in the
county in which such proceedings are instituted: Provided,
That the sales of such real estate shall be held in the county
in which the real estate is situated, unless otherwise ordered
by the said courts.” Of this act, Penrose, J., says that it ‘“ de-
clares still more emphatically that the question of jurisdic-
tion” shall not be made dependent upon the caprice of the
parties, or the ‘intention °° to embrace lands in more than one
county.”
Lands in different counties — Act May 14, 1874.
The first section of the act of May 14, 1874,*" states that
“The true intent and meaning of the act, entitled ‘An act
relative to suits in dower and partition,’ approved February
20, 1854, and its supplement, approved March 30, 1869, is
hereby declared to be to include and embrace all suits, whether
at law or in equity, instituted or to be instituted in the Court
of Common Pleas or Orphans’ Court of any county of this
commonwealth, by any tenant in common or joint tenant for
the partition or valuation of any real estate; and writs of parti-
tion in all such cases may be issued to an inquest of seven
men, or to a commission of three men, and all proceedings in
regard to the same shall be as provided by law in other eases.”
The second section provides that “ Nothing contained in this
act or the acts to which it is a supplement, shall be so con-
strued as to prevent any tenant in common or joint tenant of
real estate, situated in two or more counties of this common-
wealth, from bringing a separate suit either at law or in equity,
in either or any of such counties, for partition or valuation of
so much of such real estate as is situated therein, except in the
ease where such real estate consists of single tracts lying in ad-
joining counties.” This act is probably unconstitutional, be-
cause it violates section 6, article III of the Constitution,*®? for-
bidding that any law shall be revived, amended, or the pro-
visions thereof extended or conferred by reference to its title
only;** but, even if constitutional, it does not repeal or change
the decedent whose land is to be
28 Than the act of April 17,1856.
divided, had his domicile,” ete.
29Of the domiciliary court, to
control the partition of all the de-
cedent’s lands within the State.
30 The act of February 20, 1854,
had said: “Provided, That such
proceeding intended to embrace lands
in more than one county, shall be
brought only in the county where
312 P. & L. 3390; 2 Br. Purd.
1644.
82] P. & L. 55.
33 Phillips’ Estate, 6 Pa. OC. C. 499,
502; Phillips’ Estate, 6 Pa. C. C.
449, 454; White’s Estate, 14 Pa. C.
C. 138, 141. Rhone, J., assumes
10 Partition 1n OrpHans’ Court.
the requirements of the act of April 17, 1856, with regard to
the necessity of the consent of the domiciliary court to a parti-
tion in another county.*4
Land in different counties — Resumé.
The jurisdiction of the court, with respect to the situs of the
land, may be thus expressed. The Orphans’ Court of the county
in which the decedent had his domicile has sole jurisdiction to
make partition of all his lands, lying in any of the counties of
the State, unless it consents to the assumption of jurisdiction by
the court of some other county. If the domiciliary court con-
sents to this assumption of jurisdiction, by the court of some
county in which land lies, then the latter court may partition
that land, with the exception that if a tract extends into two
counties, the part of it having no mansion-house upon it (or,
there being no mansion-house anywhere on the tract), the
smaller part. of it must be divided, along with the other part, by
the court of the county in which that other part lies. If the
decedent had no domicile in Pennsylvania at the time of his
death, the court of the county in which the larger part, in
value, of his lands lies, has the same jurisdiction as the court of
the domiciliary county would have had.
that the partition must be of allthe J., while doubting its constitution-
decedent’s lands in the common- ality, thinks the act of May 14, 1874,
wealth, in Adelman’s Estate, 6 Kulp, reaffirms the power of the Orphans’
382. Court in any county to partition
84 White’s Estate, 14 Pa. C. C.138, the lands lying in that county, ex-
Penrose, J.; Phillips’ Estate, 6 Pa. cept in the case of single tracts lying
C. C. 449, Ferguson, J.; Lowrie’s in adjoining counties. Phillips’ Es-
Estate, 45 Pitts. L. J. 80. Weand, tate, 6 Pa. C. C. 499.
TEstTacy. 11
CHAPTER II.
THSTACY.
Minority of devisee.
The earlier acts conferring jurisdiction in partition upon the
Orphans’ Courts of the State, conferred it only in cases of in-
testacy. Where the decedent left a will, which deviated from
the course of descent, partition could be had only in the Com-
mon Pleas. The fourth section of the act of April 13, 1840,?
directed that the jurisdiction of these courts “shall extend to
all cases of testacy wherein the parties interested, or any of
them, are minors, or the course of descent is not altered by the
provisions of the last will and testament of the decedent, and
the same proceedings shall be had thereon as in cases of
intestacy, subject always, however, to the provisions of the
said last will and testament, and the true intent and meaning
of the testator.” Under this act, the jurisdiction arose when-
ever a minor was a cotenant, or whenever the devises coincided
exactly with what would have been the descents under the
intestate law. It was not necessary that these two conditions
should coexist. Though the course of transmission was
changed by the will, the minority of a co-owner conferred the
power on the Orphans’ Court to make the partition.2 Nor was
the minority of the petitioner necessary; that of any one of the
respondents would support the jurisdiction,? even though his
interest was merely a remainder, still contingent when the
partition was sought.*
Course of transmission unchanged.
When the will gives the estate of the decedent to the same
persons as would take it under the intestate law, and in the
game proportions, the devisees are considered as taking by
descent, and probably there was no need of the act of April
13, 1840, to confer power on the Orphans’ Court to make parti-
tion in such cases.” A will giving a life estate to a widow for
1P. L. 320. ing the lives of the life tenants, on
2Waln’s Appeal, 4 Pa. 502; Cow- whose estates remainders were lim-
an’s Appeal, 74 Pa. 329; Rawle’s ited to such of their children as
Appeal, 119 Pa. 100; Rankin’s Ap- might survive them.
peal, 95 Pa. 358. 5 Cf. Waln’s Appeal, 4 Pa. 502;
8 Waln’s Appeal, 4 Pa. 502. Selfridge’s Appeal, 9 W. & S. 55;
4McIntosh’s Estate, 4 Pa. C. C. Scheible’s Estate, 5 Pa. C. C. 601.
593. The partition took place dur-
12 Partition In OrrHans’ Court.
life, and a remainder in fee to the children, Penrose, J., thought.
that the course of descent, as respects the children, was not
altered, for, at the death of the widow, or on her election not to
take under the will, or on her surrender of her life estate, they
would have precisely what they would have were there no will.®
The fact that a gift of land to all the children has a charge of
$200 put on it in favor of one of them, was tacitly assumed not
to preclude a partition in the Orphans’ Court.’ But a will
devising to six of eight brothers and sisters, land which they
would have all taken under the intestate law, did alter the
course of descent, and precluded a partition by the Orphans’
Court in 1885.8
Testacy — Act April 10, 1849.
The tenth section of the act of April 10, 1849,° extended the
jurisdiction of the Orphans’ Court “to all cases of testacy
wherein the whole or a part”? of the real estate of the decedent
may be devised to two or more children,” and directed that
“when such real estate is devised to two or more children, to
be held and enjoyed in unequal proportions, the said court shall
decree such an appropriation of the moneys arising therefrom
as will best effectuate the intentions of the testator; and in all
such cases in which proceedings in partition may have been
had or commenced, the same shall be deemed and taken to be
as regular and valid as if this act had been passed previous to
the commencement of such proceedings.” The fact that the
cotenants, though devisees, were children of the testator, irre-
spective of the minority of any of them, or of the alteration of
the course of descent, bestowed on the Orphans’ Court power
to make partition." A devise of a life estate to the widow, and
of the remainder to the children, would enable the latter to
effect partition through the Orphans’ Court,” and two sons to
6 Scheible’s Estate, 5 Pa. C. C. 601.
The case fell, however, under the act
of April 10, 1849. Of. Huselton v.
Weisman, 3 Penny. 117; White v.
Commonwealth, 110 Pa. 90.
7 Huselton v. Weisman, 3 Penny,
117. But the act of April 10, 1849,
was, probably, the foundation of the
jurisdiction.
8 Vowinckel v. Patterson, 114 Pa.
21; 19 W. N. C. 529.
92 P. & L. 3365.
10 In Christy’s Appeal, 110 Pa. 538,
there was a devise in severalty of
two tracts to children, and of the
remainder of the land to the re-
mainder of the children, as tenants
in common.
11 When _ six-sevenths of land
passed by devise to six children, and
one-seventh to another, under the
Intestate Law, there could be ng par-
tition between the seven in the
Orphans’ Court. Cowan’s Appeal, 74
Pa. 329.
12 Stewart’s Appeal, 56 Pa. 241;
White v. Commonwealth, 110 Pa. 90.
TESTACY. 13
whom land was devised could have partition of it, although one
of them had also the option to take another piece of land at a
sum named in the will, and exercised the option.™
Testacy — Act February 26, 1869.
The first section of the act of February 26, 1869,"* provides
that “hereafter several undivided interests in any premises
derived from different ancestors by descent or devise, may be
parted in one proceeding in the Orphans’ Court.” This act
was invoked to support the jurisdiction of the Orphans’ Court
under the following circumstances. A. devised land to her two
daughters, B. and C., “to be equally divided between them,
share and share alike.” B., shortly after the death of A., mar-
ried, and, some time afterwards, died, leaving her husband and
one child to survive her. The child died, when B.’s husband
petitioned the Orphans’ Court for partition, making parties
C., and the collateral heirs of B., who were C., the sister, a
brother D., and the minor children of a deceased brother. The
petition seems to have asked for the partition of the whole
land, and not of B.’s undivided one-half, for of that there was
no occasion for partition, since the petitioner was tenant by
the curtesy of it. The land was divided into two purparts of
equal value, and pending the rule to show cause why the parties
should not accept or refuse them at the valuation, C. petitioned
the court to dismiss the proceedings for want of jurisdiction.
Hawkins, P. J., found jurisdiction to exist (1) in cases of in-
testacy; (2) in cases of testacy, where there are minors inter-
ested, or the provisions of the will do not alter the course of
descent; and (3) where title is derived from different ancestors
by descent or devise. He held that if the case before him was
regarded as a partition of the estate of A., the minority of
some of the parties was a ground of jurisdiction; if it was re-
garded as a partition of an estate coming from different an-
cestors — O.’s undivided half by devise from A., the other un-
divided half by descent from B. on her husband and the re-
spondents — this fact was also a ground of jurisdiction. Pax-
son,J., approving the view of the Orphans’ Court, remarks that,
13 Schmidt’s Estate, 6 Pa. C. C.
494.
142 P. & L. 3366; 1 Br. Purd. 605.
If the power to make partition of
land depends on the intestacy of the
decedent, with respect to the Jand in
question, it may be a question of
interpretation whether this land is
covered by the devise. If this inter-
pretation depends on the situation of
the property, the Orphans’ Court will
hear evidence as to that situation.
Rankin’s Estate, 2 Pa. C. C. 264; 34
Pitts. L. J. 90.
14 Partition In OrpHans’ Court.
had C. been the petitioner, there could be no dispute as to the
jurisdiction, and that if the life tenant could not be the peti-
tioner, the objection to the petition on that ground was too
late.® Apparently, two persons obtain their undivided inter-
ests in premises from different ancestors, if both interests come
by the same act of devise or descent from the same ancestor,
but one of them has passed by descent or devise, through an
intermediate person, now dead.
Widow claiming against will.
The act of April 20, 1869," enacts that “ In case any person
has died, or shall hereafter die, leaving a widow and last will
and testament, and such widow shall elect not to take under the
will, in lieu of dower at the common law as heretofore, she
shall be entitled to such interest in the real estate of her
deceased husband as the widows of decedents dying intestate
are entitled to under the existing laws of this commonwealth.”
The Orphans’ Courts of the several counties of this common-
wealth, in which the real estate of such decedent is situated,
shall have power on the application of the widow, or any one
interested, to award an inquest to make partition of the same,
and to decree the allotments thereof made, or, in case of refusal
to accept, to order a sale thereof, and secure the interest of
the widow and all others interested, in the same manner and
with like force and effect as is now provided by law in the parti-
tion of the real estate of persons dying intestate.”* Although,
therefore, the decedent died testate, the widow, claiming
against the will, may have partition in the Orphans’ Court,”
and the usual incidents of partition attend the proceeding — ap-
praisement of the premises, leave to accept or refuse them, and
in case of refusal, sale.”
Testacy — Act of May 9, 1889.
The first section of the act of May 9, 1889, obliterates the
distinction between intestacy and testacy with regard to the
Jurisdiction in partition of the Orphans’ Court, by enacting
15 Rankin’s Appeal, 95 Pa. 358. Reg. 118; Leyrer’s Estate, 17 Pa. C.
161 P. & L. 1681; 1 Br. Purd. 703. ©. 132; 4 D. R. 693; Boyer’s Estate,
17§ 1, act April 20, 1869. 8 Pa. C. C. 177; Gallagher’s Estate,
einaier ie = mae a 2 Foster, 144. But the widow might
eel’s Appeal, a. ; Me- estop herself. Ta z
Nickle v. Henry, 8 Phila. 87; In re Pa. 627. Ber eee
Lippincott’s Estate, 7 Phila. 504; 20 Gallagher’s Estate, 2 Foster, 144.
Collins v. Dougherty, 2 Luz. L. Reg. 212 P. & L. 3365; 1 Br. Purd. 604.
194; Stilson v. Fought, 3 Luz. L. The act of June 16, 1893 (2 P. & L.
Txsracy. 15
that “ The jurisdiction of the several Orphans’ Courts of this
commonwealth in the partition and valuation of the real estate
of decedents, shall extend to all cases of testacy, without
respect to the minority of the parties, their relationship to the
testator, or the fact of a widow’s election not to take under the
will, and the proceedings in such cases shall be in the same
manner and with like force and effect as is now provided by
law in the partition of the real estate of persons dying intes-
tate.”
Conversion.
When it is enacted that the jurisdiction of the Orphans’
Court to make partition shall extend to all cases of testacy, it
is of course to be understood that a joint ownership of land
shall be produced by the will. Partition is a process by which
this joint ownership in land is destroyed. If the will itself
destroys, or, rather, prevents the coming into existence, of such
joint ownership, partition is impossible in any court. When-
ever, therefore, the will works a conversion of what would have
been interests in land into interests in its proceeds, partition
cannot be had. It is not within the scope of this work to dis-
cuss what testamentary directions work a conversion, but merely
to indicate the effect of a conversion upon the feasibility of
partition. What the effect on the proceed-
ings with respect to the remainder of the land. would be, the
decisions leave in doubt. It has been held, that the court would
not retain the petition even for the purpose of partitioning the
other parts of the land, if the effect might be to deprive parties
of advantages in the making of the partition, which, had only
such land been included as could properly be, they would have
had.”” In Schmidt’s Estate,”* on an answer alleging the owner-
ship in severalty of one of the tracts, the petition was dismissed
“so far as it relates to these premises.” In Brader’s Estate,”
an ejectment by a stranger pending for the recovery of one of
two tracts, the partition of which was sought by the petition,
Rhone, J., deferring to Rex v. Rex, 3 8. & R. 538, refused to
entertain the petition even for the making of partition of the
other tract.
26 Thus if a certain tract is given
by will to X. for life, a partition
during X.’s life must exclude this
tract. Smith’s Estate, 2 Del. 423.
One claiming land in severalty and
having had only constructive notice
by advertisement of the partition,
may, on discovering that his land
has been sold in the partition pro-
ceeding, claim the proceeds, and
thus affirm the sale. Van Emons’
Estate, 39 Pitts. L. J. 423.
27 Small’s Appeal, 23 W. N. C. 20.
The court, after confirmation of the
inquisition, dismissed the petition.
It described six tracts, only two of
which were subjects of partition, the
other four being held in severalty.
It was suggested that had the in-
quest known that it had nothing to
do with the four pieces, it might
have made an equal partition of the
other two between the heirs.
286 Pa. C. C. 494. In Wistar’s
Appeal, 105 Pa. 390, the petition for
partition excepted twenty acres, al-.
leging that they were held ad-
versely. It subsequently appearing
to the parties and to the inquest
that there was no adverse possession,
the inquest included these twenty
acres in its deliberations and find-
ings, with consent of the parties.
Their work was not disapproved,
In Romig’s Appeal, 8 W. 415, where
the petition asked inter alia for the
partition of a moiety belonging to
the decedent, the court having no
jurisdiction over undivided interests,
the court said: ‘As then we cannot
quash the writ and inquisition in
part, the whole must be quashed.”
In Keisel’s Appeal, 7 Pa. 462, after
the heirs conveyed to the widow for
life, a tract of land, they began par-
tition, including this tract. The in-
quest divided the land into five pur-
parts, of which this tract was one.
The other four were taken by heirs
at the valuation. Nothing was done
as to the fifth. Eighteen years after-
wards, the widow dying, the other
heir asked to take the fifth at the
valuation. This was not permis-
sible, since the court had not had
jurisdiction over the tract. A new
partition would now be necessary.
296 Luz. L. Reg. 41.
36 Partition in OrpHans’ Court.
Improvements.
If a cotenant has made improvements for which he is entitled
to compensation, in a proceeding in equity for partition, he
will be entitled to the same compensation in a partition in the
Orphans’ Court. Hence, an answer, alleging the making of
such improvements, and the intention of the respondent im-
mediately to file a’ bill, praying for an account and a partition,
shows no cause for refusal of the partition in the Orphans’
Court, for the compensation can be made after the land has
been sold, and when the proceeds are before the court for
distribution.”
Ground-rent.
The want of the qualities which require the classification of
any particular piece of property as realty, is inimical to parti-
tion in the Orphans’ Court, for that process is applicable only
to land. Ground-rents, however,e. g.,a rent payable half-yearly,
“in every year hereafter forever,” are not to be considered as
personalty, because they are by the deed, which reserves them,
made redeemable “ at any time hereafter,” and they are subject
to partition.*?
Disability of party.
The disability of any of the cotenants is not an obstacle to
partition. It will be valid, although one or more of them are
femes covert, or minors. Thus the purpart of a married
woman, or of a minor, may be converted into personalty, by
the proceeding.”
Life estate and remainders.
If land is held in severalty by one for life, with remainder
therein in two or more, the remainders cannot properly be
parted during the existence of the life estate. But such parti-
tion, if made with the consent of the life tenant and remainder-
men, would not be collaterally voidable. The first section of
the act of April 11, 1835,°* entitled “ A further supplement to
30 Casa’s Estate, 21 Pa. C. C. 600. heir, her child, made wu life tenant,
31 White’s Appeal, 167 Pa. 206; allows a partition to proceed be-
White’s Estate, 14 Pa. C. C. 138; tween herself and collateral heirs as
Rex v. Rex, 3 8. & R. 533. far as to an alias order to sell, she
32 Spangler’s Appeal, 24 Pa. 424; may, on discovering her right, ob-
Cowan’s Appeal, 74 Pa. 329. tain a vacation of the proceedings
332 P. & L. 3358. If a widow, by petition. Lee’s Estate, 13 Phila.
who is also by the death of the only 291.
OxstacLes TO Partition. 37
the several acts relative to partitions,” enacts that “ Writs of
partition may be sued by parties interested in real estate, and
the same proceedings be had, notwithstanding there may be a
life estate in part or parts of the property with remainders over
in fee. Provided, That all the persons interested shall be made
parties; and provided also, That those in remainder shall have
the right to take such part as shall be awarded to them, on
giving sufficient security, to be approved by the court, for the
payment of the annual interest of such part to the tenant for
life, unless it shall appear to the court that such tenant for life
is entitled to the exclusive possession of any part of the
premises described in the writ of partition, in which case the
proceedings shall not interfere with the right of possession of
such tenant without his consent, but may be had subject to such
possessian, or such part of the premises may remain undivided
during the existence of the life estate, unless otherwise dis-
posed of by the agreement of parties interested.” Under this
act, it is only when the petition seeks partition of lands, in
some of which only there is a life estate, that there can be parti-
tion among remaindermen of those in which such life estate
exists.** When the life estate exists in all the lands, the re-
mainders in which are sought to be divided, the partition must
be refused until the extinction of the life estate. Nor can
the life tenant obtain partition, making the remaindermen de-
fendants.*°
Two or more life estates with remainder.
When there is a life estate in an undivided fraction of the
land, and the other fraction, together with the remainder on
the life estate, is held in fee by another, there can be a parti-
tion at the instance of the life tenant or the other party. Thus,
a will devised two-thirds of a tract to the widow, and the re-
mainder in these two-thirds, together with the other one-third,
to the American Baptist Publication Society. The society
might secure a partition of the land during the lifetime of
the widow.** One who has an undivided part in fee, the other
34 Wolfe’s Estate, 22 Pa. C. C. 340. 27 Cassady’s Estate, 9 W. N. C.
35 Wolfe’s Estate, 22 Pa. C. C. 340; 275. In Rankin’s Appeal, 95 Pa.
Smith’s Estate, 2 Del. 423; Wolf’s 358, there was a life tenant in one-
Estate, 13 Lanc. 329; Hunsecker’s half, and the remainder in this half
Estate, 19 Pa. C. C. 14; 6 D. R. 202; and the other half were owned by
Deshong’s Estate, 6 Del. 519; Neg- another. There was a partition by
ley’s Estate, 23 Pitts. L. J. 41. the life tenant.
86 Seiders v. Giles, 141 Pa. 93;
Deshong’s Estate, 6 Del. 519.
38 Partition iv Orpuans’ Court.
part being held by a life tenant with contingent remainders,
may cause a partition during the life estate.** If there are two
life tenants, with vested remainders in two or more, there may
be partition between the life tenants, and this partition will be
binding on the remaindermen, if they are parties to it, in favor
of both of the life tenants, or of either of them, the other
dying. The remaindermen could not have a new partition with
the survivor of the life tenants.*? There may be partition be-
tween two or more life tenants, on the life estate of each of
whom there is limited a contingent remainder to their surviv-
ing children.*°
Time when partition may be sought.
No time is prescribed to elapse after the death of the dece-
dent for the institution of the proceedings to effect partition of
his estate. It may be necessary for the executor or administrator
to resort to a sale of the land, or some of it, for the payment
of debts. It is, however, not incumbent on the heirs to wait
until it is ascertained whether such sale is going to be requisite.
The partition may, therefore, be begun shortly after the an-
cestor’s death.** On the other hand a considerable time may
elapse, ¢. g., nine years,” thirteen,* eighteen,** twenty-one,
twenty-three,* twenty-five, twenty-six,” thirty,“ thirty-three,
thirty-four.” In McCorkle’s Estate,*4 the decedent died in
1819, and the petition for partition was presented about 1896.
38 Waln’s Appeal, 4 Pa. 502.
39 Young v. Bickel, 1 8. & R. 467.
Cf. Seider v. Seider, 5 Wh. 208, 221.
40 McIntosh’s Estate, 4 Pa. C. C.
593.
41 Clark’s Estate,
within one month.
42Cowan’s Appeal, 74 Pa. 329.
43 Eberts v. Eberts, 55 Pa. 110;
Knauss’ Estate, 3 Pa. C. C. 584.
134 Pa. 140;
44 Cotes’ Appeal, 79 Pa. 235.
45 Kates’ Estate, 148 Pa. 471.
46 Dull’s Appeal, 108 Pa. 604.
47 Merklein v. Trapnell, 34 Pa. 42.
48 Thompson v. Stitt, 56 Pa. 156.
49 Gesell’s Appeal, S4 Pa. 238.
50 McCrystal’s Estate, 6 D. R. 504.
51184 Pa. 626.
Tue PETITIONER. 39
CHAPTER V.
THE PETITIONER.
Section 36, act March 29, 1832.
The thirty-sixth section of the act of March 29, 1832, directs
the partition to take place “ on the application of the widow or
any lineal descendant of the decedent having an interest in
such real estate.” “When the decedent leaves no lineal
descendants, the like proceedings shall be had in all respects,
on the application of the persons in whom the estate shall vest
in possession.”” When the land has been devised to two or
more, any of them may petition for the partition.
Widow.
The widow, says the thirty-sixth section of the act of March
29, 1832, may apply for the partition. As her statutory dower
does not depend on the number of children, she may petition
for partition when there is but one child,® or when there are
more,* or when there are no lineal, but only collateral heirs.®
Her remarriage neither destroys her dower, nor her right to in-
stitute partition proceedings to have it allotted to her. The
alienee of the widow may, like her, institute the partition.’
If the husband’s will had made a provision for the wife it was to
be considered in lieu and bar of her dower, unless a different in-
tention was expressed in the will, but the widow had her choice
either of the dower or of the estate or property so devised or
bequeathed;® but since the act of April 20, 1869,° “ In case any
person has died or shall hereafter die, leaving a widow and last
will and testament, and such widow shall elect not to take
under the will, in lieu of dower at the common law as hereto-
fore, she shall be entitled to such interest in the real estate of
12 P. & L. 3363. Lippincott’s Estate, 7 Phila. 504;
2§ 46, act March 29, 1832, 2 P. Janney’s Estate, 12 Pa. C. C. 636.
& WL. 3379. 5 Cotes’ Appeal, 79 Pa. 235.
3 Steel’s Appeal, 86 Pa. 222; Bors- 6 Cotes’ Appeal, 79 Pa. 235; Young
chill’s Estate, 40 Leg. Int. 141. v. Bickel, 1 8. & R. 467; Eby’s Es-
4 Painter v. Henderson, 7 Pa. 48; tate, 5 Pa. C. C. 434; Neeld’s Ap-
In re Eell’s Estate, 6 Pa. 457; peal, 70 Pa. 113.
Bishop’s Appeal, 7 W. & 8S. 251; 7Danhouse’s Estate. 130 Pa. 256.
McCall’s Appeal, 56 Pa. 363; In re 8§ 11, act April 8, 1833, 1 P. & L.
1678.
40 Partition In OrpHans’ Court.
her deceased husband, as the widows of decedents dying intes-
tate are entitled to under the existing laws of this common-
wealth.’ Prior to this act of April 20, 1869, the widow,
claiming against the husband’s will, took dower at common
law, and was compelled to go into the Common Pleas to have
it assigned.* This act has given jurisdiction to the Orphans’
Court, in the following words: “The Orphans’ Courts of the
several counties of this commonwealth, in which the real estate
of such decedent [i. ¢., leaving a widow and last will and testa-
ment] is situated, shall have power, on the application of the
widow, or any one interested, to award an inquest to make
partition of the same, and to decree the allotments thereof
made, or, in case of refusal to accept, to order a sale thereof
and secure the interest of the widow and all others interested
in the same manner and with like force and effect as is now
provided by law in the partition of the real estate of persons
dying intestate.”’* This act gives the widow, claiming against
the will, the right to originate proceedings in partition in the
Orphans’ Court.”
The widow of an heir.
_ On the death of an heir of the decedent prior to partition of
the estate of the latter, it has frequently happened that the heir
of this heir has begun proceedings for the partition of his grand-
father’s estate. Would the widow of this heir be able to do
the same? In 1839, Jones, J., uttered the dictum that she
would.* If her husband were the only heir, it is difficult to
perceive any serious objection to her being an applicant for
partition, even though there was in existence a widow of the
decedent.” If her husband were but one of several heirs, his
tenants in common, possibly the act of April 24, 1843,’° which
provides for the setting off of the dower of a widow when her
husband was a tenant in common with another, unless within
91P.& L. 1681.
MeNickle v. Henry, 8 Phila. 87,
10§ 1, act April 20, 1809.
Sharswood, J., at Nisi Prius, ex-
11 Bradfords v. Kents, 43 Pa. 474;
Shaffer v. Shaffer, 50 Pa. 394;
Neeld’s Appeal, 70 Pa. 113; In re
Lippincott’s Estate, 7 Phila. 504.
12§ 2, act April 20, 1869, 1 P.
& L. 1682; 2 P. & L. 3366. On a
petition filed in the Orphans’ Court
in 1867, by a widow, that court had
no jurisdiction, but it could entertain
a new petition, filed in 1870, though
called « “supplemental petition.”
Neeld’s Appeal, 70 Pa. 113. In
pressed the opinion that the juris-
diction was exclusively in the
Orphans’ Court, to set apart statu-
tory dower to a widow claiming
against the will (1871).
13 MeNickle v. Henry, 8 Phila. 87.
r . Fromberger v. Greiner, 5 Wh.
50.
15 Cf. Danhouse’s Estate, 130 Pa.
256.
162 P. & L. 3382.
Tue PETITIONER. 41
one year after his death his cotenants cause a partition and
the setting out in severalty of his share, and which makes the
assignment of dower, thus effected, valid until a partition is
brought about by the owners of the land, would preclude (as
it seems to imply her present inability) the widow’s resort to
partition in the ordinary way. In Baker v. Leibert,’? A. had
died, leaving B. and other sons and daughters. B. then died,
leaving a widow and children. Partition of A.’s estate was
begun by a petition “signed by all the parties in interest,”
and the land being accepted at the valuation by a daughter of
A., the court directed her to enter into a recognizance “ unto
the widow of C. Henry Knauss, (B.) for her yearly interest of
the one-third of the share and dividend coming to the said”
widow. Said Paxson, C. J.: ‘ The partition proceedings as they
stand were, perhaps, irregular. They were not void, however,
nor are they even voidable;” nor, if voidable, voidable col-
laterally. On the other hand, on several occasions, the court
has, in partition proceedings begun by heirs, made provision
for the payment of annual interest on one-third or one-half of
the owelty payable to the representatives of a deceased heir, to
the widow of an heir."* Whether it would follow that she
might begin the process by which this result is secured, the
decisions leave uncertain.”
The heir.
Partition may be had “on the application of the widow, or
any lineal descendant of the decedent, having an interest in
such real estate,””° and in the absence of lineal heirs, on the
“application of the persons in whom the estate shall vest in
possession.”* The distinctions between heirs, with respect to
the order of accepting land at the appraisement, do not affect
17125 Pa. 106. In Cotes’ Appeal, but did not say that the court would
79 Pa. 235, A. gave a life estate to
his widow, and the remainder in fee
to his five children. One of them,
B., married after A.’s death, and
then died, leaving a widow, but no
children. B.’s widow, after the
death of A.’s widow, filed a petition.
Her right to do so was sustained.
18 Danhouse’s Estate, 130 Pa. 256;
Evans v. Ross, 107 Pa. 231; Shea-
rer’s Appeal, 96 Pa. 61; Martin’s Es-
tate, 1 Chest. 512. In Field’s Es-
tate, 14 Phila. 304, the court held
that the purchaser at a sale in par-
tition would not buy it charged
with the second widow’s life estate,
not secure this estate for her.
19 See below as to a life tenant’s
tight to begin proceedings in parti-
tion.
20§ 36, act March 29, 1832, 2 P.
& L. 3363.
21§ 46, act March 29, 1832, 2 P.
& L. 3379. The decedent leaving a
widow, a nephew and a niece, the
niece may petition. McCall’s Ap-
peal, 56 Pa. 363. So could the
brother, the decedent leaving a
widow, a brother and the children
of two deceased sisters. Ferree v.
Commonwealth, 8 S. & R. 312; Seider
v. Seider, 5 Wh. 208.
42 Partition iv Orpuans’ Court.
the right of petition. The oldest son may, of course, begin the
proceedings,” but so may any of the younger sons, or any
daughter. Thus, of four daughters and one son, the youngest
daughter might be the petitioner. Nor is it necessary that
the petitioner should own the larger interest, or an interest not
less than a certain minimum; e. g., A. owning one-sixth, and
B. five-sixths of the land, the former may compel partition.*
The petition is by the heir, “if of full age, or if under age, on
the application of his guardian,”” the court may appoint the
inquest. The common guardian of three children may petition
for all,”° or, the children having different guardians, all the
latter may unite in the petition.” All the heirs,”* or some of
them, e. g., two out of twelve,® may join; or all the heirs and
the widow.” It is not necessary that the petitioner should be
as near, in degree of consanguinity, to the decedent as other
living heirs. Thus, there being children, and grandchildren,
who are children of a deceased child, the right of the grand-
children to petition, said Gibson, J., in 1820, “was never
doubted;”** and, an heir dying after the decedent, his heirs
may petition for partition of the primary decedent’s estate.**
Other than heirs.
The alienee of the interest of an heir acquires his right to
petition the Orphans’ Court for the partition of the decedent’s
lands,** as does the alienee of the heir of the deceased heir.**
The alienee of a widow, who, by the death of a childless and
brotherless son, has acquired a life estate in hisland, may petition
for partition.” The jurisdiction, in a case of intestacy, depend-
ing on the minority of some of the devisees, perhaps an adult
22Rex v. Rex, 3 8 & R. 533;
Horam’s Appeal, 59 Pa. 152; Dresher
v. Allentown Water Co., 52 Pa. 225.
23 Beatty v. Smith, 4 Y. 102. 31 Hersha v. Brenneman, 6 S. &
24Denning’s Estate, 4 Pa. U. C. R. 2.
179. 34 Merklein v. Trapnell, 34 Pa. 42.
25§ 36, act March 29, 1832, 2 P. 33 Merklein v. Trapnell, 34 Pa. 42;
30 Pideock v. Bye, 3 R. 183: White
v. White, 5 R. 61; White v. Williams,
3 Phila. 460.
& L. 3363; Bishop’s Appeal, 7 W. &
8. 251; McMasters v. Carothers, 1
Pa. 324; Kidd v. Commonwealth, 16
Pa. 426; Diefenderfer v. Eshleman,
113 Pa. 305.
26 Diefenderfer v. Eshleman,
Pa. 305.
27 Kann’s Estate, 69 Pa. 219. The
widow united with them.
28 Kreider’s Estate, 18 Pa. 374;
Mason's Appeal, 41 Pa. 74.
29 Hersha yv. Brenneman, 6 S. &
R. 2.
113
Thompson y. Stitt, 56 Pa. 156;
Thompson vy. Simpson, 30 Pa. 60, 71;
Cubbage v. Nesmith, 3 W. 314;
Mealy’s Estate, 1 Ash. 363; Har-
rison’s Estate, 4 Luz. L. Reg. 105.
34 Merklein v. Trapnell, 34 Pa. 42.
There being three daughters, and
one son, the alienee of two of the
daughters petitioned. Cubbage v.
Nesmith, 3 W. 314.
35 Danhouse’s Estate, 130 Pa. 256.
Her four assignees petitioned.
Tue Perrrioner. 43
purchaser, at an Orphans’ Court sale, of the interest of these
devisees, could proceed in the Orphans’ Court for partition.**
The conveyance of the heir’s interest may be voluntary on his
part; or it may be by the sheriff,” or the administrator. In
the latter case, as well as the former, the purchaser acquires
the right to petition for partition. The mortgagee of an heir
is not such an alienee as is entitled to require a partition.*®
Lunatic.
The first section of the act of February 20, 1867,” directs
that “ Whenevet the estate of a lunatic, or habitual drunkard,
consists of an undivided interest in real estate, whether as joint
tenant, tenant in common, or coparcener, it shall and may be
lawful for the committee of such lunatic or habitual drunkard,
as the case may be, to institute an action of partition, in the
Court of Common Pleas of the county in which such real es-
tate is situated, for the purpose of having the same divided
according to the act of Assembly, in such case made and pro-
vided.” The act of March 22, 1865,° enacts that “The com-
mittee of the estates of lunatics and habitual drunkards shall
have the same power in proceedings for the partition or parti-
tion and valuation of real estate held by such lunatics and
habitual drunkards, which guardians have over the real estate
of their wards, by the existing laws of this commonwealth.”
Minor.
The thirty-sixth section of the act of March 29, 1832,*° con-
fers power on the Orphans’ Court to make partition, on the
application, if the heir is under age, of his guardian.
Life tenant.
Whether a life tenant may petition for a partition seems yet
to be doubtful. In Rankin’s Appeal,* there was a devise to
36 Rawle’s Appeal, 119 Pa. 100. If,
after an heir petitions the court for
partition, he conveys his interest, the
grantee may accept or refuse at the
valuation. Ragan’s Estate, 7 W.
438.
37 Stewart’s Appeal, 56 Pa. 241;
Thompson v. Stitt, 56 Pa. 156;
Long’s Appeal, 77 Pa. 151.
38 Stewart v. Allegheny National
Bank, 101 Pa. 342; Long’s Appeal, 77
Pa. 151; McCandless’ Appeal, 10 W.
N. C. 563; Harrison’s Estate, 4 Luz.
L. Reg. 105. In Schellinger’s Estate,
16 Phila. 376, the petition was by a
grantee, who in it disclosed the fact
that the deed was intended to be a
security for a debt; that is, « mort-
gage. Penrose, J., in view of facts
stated in the answer, allowed the
petitioner to amend the petition by
stating the amount of the debt so
that the respondents might, by pay-
ing it, prevent the partition.
391 P. & L. 2822; 1 Br.
1274.
39a1 P. & L. 2821.
402 P. & L. 3363.
4195 Pa. 358.
Purd.
44 Partition In OrpHans’ Court.
two daughters. One of them died, leaving a husband, one
child, the sister, a brother, and nephews. The child died shortly
afterwards, and its father became tenant for life, both by the
curtesy and as heir to the child. He filed, in 1879, a petition
for partition; the inquest was awarded by Hawkins, P. J.; and
after the return of the inquisition a rule issued requiring the
heirs to accept or refuse, at the valuation. Before the return
of this rule, the devisee’s sister, one of the parties, petitioned
the court to dismiss the proceedings for want of jurisdiction,
the original petition having been presented by a life tenant.
The court refused to dismiss the proceedings. In the Supreme
Court, said Paxson, J.: “ There is nothing in the language of
any act of Assembly that in express terms gives a life tenant,
other than the widow, the right to have partition in the
Orphans’ Court,” but he declined either to decide, or to dis-
cuss the question; because, had one of the collateral heirs in-
stituted the partition, making the husband a party, as he must
have done, the court would undoubtedly have had jurisdic-
tion, and the error with respect to the order in which the
parties are brought into court (that is, in allowing the life
tenant, instead of being respondent, to be petitioner), if error
it be, should have provoked an objection at an earlier day.
In 1899, Himelspark’s Estate**was before the Orphans’ Court of
Philadelphia. The petitioner, father of an heir, who died in
childhood, without brother or sister, filed a petition for parti-
tion, alleging that he was the owner in fee of one-half of the
premises. Ashman, J., finding that he was owner simply for
life, because, the land being ancestral, he was not of the blood
of the first purchaser, the devisor, nevertheless concluded that
“ the petitioner, as such life tenant, is entitled to a decree,” and
granted the inquest.
Remaindermen.
The forty-sixth section of the act of February 24, 1834,‘
contemplates cases in which there are life estates in certain
shares of the estate, and, therefore, in which there are re-
mainders therein. The act of April 11, 1835, also directs that
428 D. R. 183. The right, in main charged on such or other real
equity, of a life tenant, to a par-
tition with other life tenants, is as-
sumed in Holmes v. Woods, 168 Pa.
530, 533, as a consequence of the act
of June 3, 1840, 2 P. & L. 3358.
482 P. & L. 3375. It directs that,
in cases of sale in partition, “ the
share of any tenant for life shall not
be paid to him or her, but sha!l re-
estate.”
442 P. & L. 3358. Cited by Pen-
rose, J., as applicable in partition in
the Orphans’ Court, in Cassaday’s
Estate, 9 W. N. C. 275; by McClure,
P. J., in Wolfe’s Estate, 22 Pa. C. C.
340, and by Sterrett, J., in Wistar’s
Appeal, 105 Pa. 390.
Tue Prririoner. 45
“writs of partition may be sued by parties interested in real
estate, and the same proceedings be had, notwithstanding there
may be a life estate in part or parts of the property, with
remainders over in fee.” It is not apparent, however, that
one whose only interest is a remainder is entitled, under either
of these acts, to begin partition.” When a life estate exists in
the entire land, with remainders to two or more persons limited
upon it, it is clear that the remaindermen cannot, during the
life estate, secure partition.*® Thus, during the life of a tenant
by the curtesy,*” or of the widow, to whom the children have
granted a life estate,*® or of a widow who, as mother of a
deceased child, has inherited his share for life, the remainder.
men cannot have partition among themselves.
Life tenant estopped.
But the life tenant may refrain from asserting his right to
the present possession, and, though a party, permit the partition
to proceed. In such a case, both he, and the other parties to
it, who allowed it to be consummated without raising an objec-
tion, would be precluded from collaterally attacking the parti-
tion. In Donaghy v. Gill, a life estate was given by will to
the widow, and the remainder to the children. Partition was
had during her lifetime, the land was accepted by one of the
children at the appraisement, and a recognizance entered into
to pay to the widow and heirs the amounts to which they were
entitled by law. In an action on the recognizance, by the widow,
it was held, that she could recover only the interest on one
third of the valuation; that she ought to apply to the Orphans’
Court to reform the recognizance, so as to entitle her to the
interest on the entire valuation during life, but that the parti-
43 Endlich, J., reached the conclu-
sion — it was not essential to the
decision, however — that the act of
April 11, 1835, was intended to
change the law that only persons
entitled to immediate possession
could have partition, and to confer
the right to it, on those who, as re-
maindermen, have no right to im-
mediate possession. Seiders v. Giles,
141 Pa. 93, 97.
48Donaghy’s Estate, 152 Pa. 92;
Donaghy v. Gill, 130 Pa. 296; Mc-
Intosh’s Estate, 4 Pa. C. C. 593;
Deshong v. Deshong, 6 Del. 519;
Lee’s Estate, 13 Phila. 291; Negley’s
Estate, 23 Pitts. L. J. 41; Smith’s
Estate, 2 Del. 423. The question
was raised, but not decided in Cotes’
Appeal, 79 Pa. 235.
47 Wolfe’s Estate, 22 Pa. C. C. 340.
48 Keisel’s Appeal, 7 Pa. 462;
Hunsecker’s Estate, 19 Pa. C. C. 14;
6 D. R. 202.
49 Lee’s Estate, 13 Phila. 291. Cf.
Wolf’s Estate, 13 Lance. 329.
50130 Pa. 296.
46 Partition In Orpuans’ Court.
tion was valid.’ In Scheible’s Estate,” the life tenant acted
as trustee, under the appointment of the court, to make sale of
the land. This estopped her from contesting the title of the
purchaser to an immediate possession, and, therefore, deprived
him of the excuse for not paying the purchase money, that he
would not acquire a good title. It hardly needs to be remarked
that when partition is sought of several tracts, the fact that
there is a life estate in the whole of one of them does not pre-
clude a partition of the others.”*
The husband of heir.
Unless recent legislation, enlarging the rights of a married
woman over her property, has changed the law in this respect,
the husband of an heir may initiate the proceedings looking to
a partition of land in which she is a cotenant. Solomon Eckert,
in 18238, presented such a petition, his wife not joining, alleging
his, not her, desire. of having his share, in right of his wife, in
the real estate of her father, in severalty. Said Smith, J., in
1828: “Could Solomon Eckert alone petition the Orphans’
Court in the manner and for the purpose stated? We think
he could, and that such has been the received opinion, on this
subject, in every county in the State. The husband may be con-
sidered as the legal guardian and protector of his wife, and
clearly has an interest in her estate, as long as he lives, in right
of his wife; and if he survive her, he would, provided there
has been issue, etc., be tenant by the curtesy in such an es-
tate.”°* The husband, too, has a right, unless he has recently
ceedings by Mrs. Donaghy for the
51Green, J., suggested that it
partition of her husband’s lands,
would be prudent for the defendant
not to raise the question of the
jurisdiction of the Orphans’ Court to
make the partition, since, were it
declared void, the widow, as life
tenant, could recover all the rents
and profits of the land from him.
In Donaghy’s Estate, 152 Pa. 92, the
widow’s petition to reform the recog-
nizance was unsuccessful because the
recognizer had already paid, in obe-
dience to the terms of the recog-
nizance and the decree of the
Orphans’ Court, two-thirds of the
valuation to the remaindermen. The
life tenant had united in the applica-
tion for the partition. Says the
court: “The purpose of the parti-
tion being the severance of joint
possession, the institution of pro-
necessarily implied the concession of
a joint right of possession with her
in those who were made parties.
The court could have had jurisdic-
tion on no other hypothesis.”
535 Pa. C. C. 601. In Wolfe’s Es-
tate, 22 Pa. C. C. 340, McClure, P. J.,
held, that though the life tenant does
not object to the partition, the court
will dismiss proceedings, when her
life estate is brought to its notice,
since consent cannot confer jurisdic-
‘tion.
53 Hunsecker’s Estate, 19 Pa. C.C.
14; 6 D. R. 202.
54 Eckert v. Yous’ Administrator,
2 R. 136. The wife could not resist
the husband’s petition for partition.
Quigley v. Commonwealth, 16 Pa.
Tue Prririoner. 4T
lost it, of accepting for himself, though in right of his wife,
land at the valuation, and of thus becoming owner of it.
Whether, at the present time, this right of the husband for
himself, and not as agent of the wife, to cause a profound
change in the nature of her estate, exists, it is not possible to
assert with any positiveness. The statutory changes which
have abolished his power and control over the wite’s lands
would seem, logically, to carry with them the abrogation of his
power, without her authority, to initiate a partition of her
estate.°* Her authority may, however, probably be presumed
when the want of it is not made to appear.
Husband as agent.
The husband, acting as the agent of his wife, may file a
petition in the name, e. g., of ‘ Josephine Barkley, by her hus-
band W. F. Barkley.” Subsequently he elected to take the land
at the valuation, and he gave recognizances for the owelty. At
her subsequent complaint that he had acquired the tract by
means of money payable to her, on account of the other tracts
taken by other heirs, the Supreme Court say: “ Mrs. Josephine
Barkley, through the agency of her husband, was the actor in
this partition, and that the purpart was awarded to him instead
of her, matters little, seeing that her money was used to pay
the owelty. She was in equity the owner of the land and
could have compelled a conveyance to her. Under such cir-
cumstances she cannot now be allowed to resist the collection
of the recognizance.”
Determining the right of the petitioner.
The allegation of the petitioner in his petition, of the facts
which show his right to maintain proceedings in partition, is
not conclusive, but it may be contested by the answer of the
respondents,”®
353; Stoolfoos v. Jenkins, 8 8. & R.
167. The death of the wife before
that of her father, prevents her
getting any interest in her father’s
land. Therefore her surviving hus-
band cannot commence partition pro-
ceedings. Lair v. Hunsicker, 28 Pa.
115.
55 Rankin’s Appeal, 95 Pa. 358;
Thompson vy. Stitt, 56 Pa. 156; Keen
v. Ridgway, 16 8. & R. 60; Johnson
v. Matson, 1 P. & W. 371; Stoolfoos
v. Jenkins, 8 S. & R. 175; Hoffer v.
Wightman, 5 W. 205; McCullough v.
or by a so-called plea,
°° or they may intervene
Wallace, 8 8. & R. 181; Snevily v.
Wagner, 8 Pa. 396; Cubbage v. Nes-
mith, 3 W. 316.
56 Cf. Powell’s Estate, 3 D. R. 508;
Eby’s Estate, 5 Pa. C. C. 434.
57 Barkley’s Appeal, 2 Mona. 274;
Barkley v. Adams, 158 Pa. 396.
58 Davis’ Estate, 9 W. N. C. 380;
Armstrong’s Estate, 10 W. N. C.
571; Thomas’ Appeal, 23 W. N. C.
409.
59 Wistar’s Appeal, 115 Pa. 241. The
plea was filed, on rule to show cause
why an inquest should not be
48 Partition In Orpuans’ Court.
after an inquest has been awarded, and by petition ask for a
revocation of the award and the setting aside of the proceed-
ings.” To the answer of the respondents, there may be a
replication. The answer should state facts, or the belief of
the respondent. Averring that the respondent does not know
that the petitioner is a relative of decedent, and not stating
that the respondent believes him not to be such relative, or
stating that until recently he had never heard of the existence
of the petitioner, is not enough. On demurrer, or exceptions
to the answer, the court may grant leave to the respondent to
file another answer by a certain time, ordering that if this
is not done the petition shall be taken pro confesso.“ When
the answer alleges that the petitioner (in the capacity of a
son) is not a son, but, e. g., a child adopted from a foundling
asylum, it casts on the petitioner the duty of proving his rela-
tionship.” The court may appoint an auditor® to take testi-
mony, or it may, under the fifty-fifth section of the act of
March 29, 1832, direct an issue to the Common Pleas, stay-
ing further proceedings on the petition meanwhile.” In
Rankin’s Estate, a will directed a conversion of certain land.
An heir, contending that, as to one tract, the deceased died
intestate, petitioned the Orphans’ Court for partition of it.
‘Whether it was embraced in the description of the will was the
question. The court heard testimony as to the location of the
tracts, the conveyances under which the decedent became the
owner, and determined that the tract in question was not em-
braced in the will. ‘ The grant of a power to make partition
among lineals and collaterals,” says Hawkins, P. J., “is a grant
by necessary implication of the power to determine who are
lineals and collaterals and their proportions.”
granted. It denied that the peti-
tioners were cotenants with the re-
spondent. The court overruled the
plea for insufficiency, but treated it
as an answer. After hearing, the
interpretation of a will being the
only matter at issue, the inquest was
awarded.
60 Kiseman’s Estate, 13 Lance. 401;
McCorkle’s Estate, 184 Pa. 626.
61 Davis’ Estate, 9 W. N. C. 380.
62 Armstrong’s Estate, 10 W. N.
C. 571.
63 Thomas’ Appeal, 23 W. N. C.
409.
642 P. & L. 3338; 2 Br. Purd.
1632.
65 Armstrong’s Estate, 10 W. N.
C. 571; Mealy’s Estate, 1 Ash. 363.
662 Pa. C. C. 264; Davis’ Estate,
9 W. N. C. 380; Dundas’ Appeal, 73
Pa. 474,
Tue Peririon. 49
CHAPTER VI.
THE PETITION.
Contents of the petition.
Like other proceedings in the Orphans’ Court, partition is
begun by a petition in writing addressed to the court.’ It
recites the death of the decedent and its date, describes the
property of which he died seized, and partition of which is
sought, enumerates the heirs or devisees, and if there is a will,
gives the import of so much of it as is necessary to understand
how a joint estate has come into existence. In concludes with
a prayer for the awarding of an inquest to make partition
among the parties interested, if such partition can be made
without prejudice to or spoiling the whole; but if such parti-
tion cannot be made, then to value and appraise the same and
make return of their proceedings according to law.
Oath or affirmation.
The petition must be “supported by oath or affirmation.”
The oath must be that of the petitioner, or some person entitled
to the partition. If the oath be that of the administrator, who
is not an heir or devisee, the inquest will not be awarded, or,
if inadvertently awarded, the inquisition, when returned, will,
on exception to it, be set aside.®
‘
Naming the parties.
“In the proceedings for the partition and valuation of an
intestate’s real estate,” says the second section of the act of
April 14, 1835,‘ “ the parties in interest shall be named in the
petition, decrees, and notices, when known; but if it shall ap-
pear, on oath or affirmation, that the names or residence of
any of the parties are unknown to the applicant for the parti-
tion, the Orphans’ Court shall have power to direct such notices
to be given to such parties by publication in the public news-
1§ 57, act March 29, 1832, 2 P. & vertised, as of the estate of Hettie
L. 3340. and Susan Zittle. In the notices and
2§ 57, act March 29, 1832. return of inquest, and order of sale
3 Heller’s Estate, 6 Luz. L. Reg. the land was described as of Daniel
200. Zittle. The court allowed an amend-
41 Br. Purd. 606; P. L. 275. The ment in the notices, etc., after the
petition sought the partition of two sale, and despite the objections of
undivided thirds belonging to Hettie the purchaser. Zittle’s Estate, 4
and Susan Zittle. A sale was ad- Lane. 163.
4
50 Partition iv OrpHans’ Court.
papers, describing the parties as far as practicable, as shall
appear to the court to be reasonable and proper; and the pro-
ceedings shall be as effectual, to all intents and purposes, as
if all the parties had been named in the proceedings.” If any
of the heirs has died since the death of him whose estate is to
be partitioned, this circumstance should be mentioned, together
with the facts of relationship that disclose to whom the share
of this deceased heir has passed, e. g., whether he has left
children, or, dying childless, whether he has left a mother or
father, or brother and sister.” Life tenants® and the widow of
the decedent? must be named, since provision in the partition
must be made for them; and also remaindermen.*®
Naming remaindermen.
The forty-sixth section of the act of March 29, 1832, which
contemplates the case of an absence of lineal heirs, directs
that “if there be a life estate or life estates with remainders
over, such remaindermen shall be made parties to the proceed-
ings in partition, and shall have the right to accept or refuse
the premises at any valuation.” Whether, when the remain-
dermen are unascertained on account of the contingency of
the remainder, it is necessary that anyone should be named to
represent their interest is uncertain. In one case, necessity
has been denied. Thus, land being by will given to A. for
life, with remainder to such of his children as might survive
him, it was not necessary, it was held, to make parties even the
living children, who, should they survive, would be entitled to
the remainder.® On the other hand, Hawkins, P. J., said that
“the appointment of trustees to represent contingent interests
not in esse”? was indispensable. In Waln’s Appeal, land
5 Ragan’s Estate, 7 W. 438; Rich-
ards v. Rote, 68 Pa. 248. The death
of a child, shortly after the intes-
tate’s death, and before the petition
is filed, will not excuse reference to
him, if that death has caused a life
estate in his share to pass to his
mother, and the remainder to his
brothers and sisters. Ragan’s Es-
tate.
6Ragan’s Estate, 7 W. 438;
Klingensmith’s Estate, 130 Pa. 516;
Rankin’s Appeal, 95 Pa. 358; Mc-
Intosh’s Estate, 4 Pa. C. C. 593.
7McCall’s Appeal, 56 Pa. 363.
8 McIntosh’s Estate, 4 Pa. C. C.
593; § 46, act February 24, 1834; 2
P. & L. 3375.
9 Smith’s Estate, 2 Del. 423, Arch-
bald, J.
10 McIntosh’s Estate, 4 Pa. C. C.
593. The appointment would, prob-
ably, not precede the filing of the
petition, however. In this case the
devise was to four children as ten-
ants in common, and in case any
should die “without lawful issue sur-
viving them” his share to go to the
children of the other devisees. This
was assumed to give a contingent
remainder to the children of the
children. At the time of the peti-
tion each of the children had chil-
dren living.
114 Pa. 502.
Tue PEririon. 51
was devised to a trustee in trust for two children, as tenants
in common for life, with remainder to the children of these
life tenants who should be living at their death. One of the
life tenants was dead, leaving children. The other life tenant
was still alive. The petition, which had not mentioned her
children, was amended by inserting their names and the name
of their guardian.
Naming trustee.
If the shares of any devisees are held in trust, it is needful
to name the trustee as a party in interest. No special form
for naming parties is prescribed. If, then, the petition sets
forth that part of the will which makes the devise to the trus-
tee, and asks for a partition to and among the representatives
of the testator, in accordance with the will, every person named
in the quotation from the will is made a party to the proceed-
ing, inter alios, the trustee who is named and whose interest
as such is distinctly shown.”
Positive exclusion of unnamed parties.
It is not enough to name all the parties, but the petition
should positively aver that there are no other parties. The
petition stating that Frederick Danhouse died intestate, “ leav-
ing to survive him Susan, his widow, and one child, to-wit,
John M. Danhouse,” Paxson, C. J., remarks: ‘All that the
petition states may be true, yet, for anything upon its face,
Frederick Danhouse may have left surviving him other chil-
dren besides John M. Danhouse. Too much care cannot be
taken in proceedings affecting the title to real estate.’
Naming alienees.
If alienations of the shares of any heirs or devisees have
taken place to the knowledge of the petitioner, the petition
should mention them and the names of the alienees. If it
does not, and they are not by any subsequent steps made
parties with notice, the partition will be so far void that if
one of the parties to the partition, who had knowledge of the
alienation, acquires the land either by accepting it at the ap-
praisement, or by sale, the alienee can assert his right in eject-
ment or otherwise, precisely as if the partition had not been
had.4* If, however, the alienation is unknown to the heirs
12 Reid v. Clendenning, 193 Pa. 406. 14 Thompson v. Stitt, 56 Pa. 156.
13 Danhouse’s Estate, 130 Pa. 256; The interest of A., one of three heirs,
Marcy’s Estate, 9 Kulp, 128. had been sold to B., another. It was
52 Partition In Orpuans’ Court.
when the partition is made, it will be impracticable, of course,
and unnecessary to name the alienee. A son, George Carver,
sells to Fousts the interest held by him in his father’s estate,
April 5, 1810. The deed is not recorded until March 22, 1856.
A mortgage for the purchase money is, however, made to
George and recorded. George dying four years afterwards,
Lungren, who purchased the interests of some of his children
and of some of his brothers, on January 2, 1827, petitioned the
court for a partition, and the land was awarded to him. On
his death, the land was sold, for the payment of debts, to A.,
whose interest was sold to B., and several other sales, public
and private, took place. On a judgment obtained on a sci. fa.
sued out in 1843 upon the mortgage, the interest of Fousts
was sold. The vendee was not permitted to recover in eject-
ment. The decree in partition cut off the title of Foust and
of his mortgagee, though he was not named in the petition.
“There was no deed [to Foust] on record,” says Thompson,
J., “nor possession by the Fousts, or any one claiming under
them, so as to indicate any claim in them calling for notice,
and that the mortgage by them to George Carver was not con-
structive notice of title to a purchaser from the heirs.”®
Husband.
The third section of the act of June 8, 1893,1° declares that
“Hereafter a married woman may sue and be sued civilly in
all respects and in any form of action, and with the same effect
and results and consequences as an unmarried person, but she
may not sue her husband,” ete. The second section of the
act of June 3, 1887," had said that the “ husband need not be
joined with her [the wife] as plaintiff or defendant, or be made
a party to any action, suit or legal proceeding of any kind
brought by or against her in her individual right.” Under this
legislation, is it necessary to make the husband of an heir or
devisee a party to a proceeding to effect partition of the land
of which she is a cotenant? In McCoy’s Estate,!8 Ashman, J.,
after remarking that the practice of joining him always pre-
again sold in execution to X., B. 15 Merklein v. Trapnell, 34 Pa. 42.
knowing of the sale. B. subsequently 162 P. & L. 2905.
instituted partition, not naming X. 17P. L. 332.
in the petition as an alienee, nor giv- 1811 Pa. C. C. 9; 29 WN. C. 412;
ing him notice. The land was ad- 1 D. R. 60. The husband filing an
judged to B. X. could, nevertheless, answer to the petition, averring that
recover one-third from B.. in eject- he was not named as a party, leave
ment, if, for any reason, the sale to was given to amend the petition.
B. was invalid as against X.
Tue Petition. 53
vailed under the act of April 14, 1835, adds: “The act of
1835 directs that in a suit in partition all parties in interest
shall be joined or shall have notice. That act has not been
expressly repealed, and it can be repealed by implication only
where the language of a subsequent act is utterly repugnant
to its continued operation. Sweeping as the changes wrought
by the act of 1887 may be deemed, the act yet recognizes the
curtesy of the husband as an existing estate, a point on which
it is in harmony with judicial decisions. Clarke’s Appeal, 79
Penn. 376. ‘To prevent the wife from divesting that estate,
it expressly prohibits her from mortgaging or conveying her
realty without his concurrence. Unless we misread it, the act
of 1887, therefore, makes the husband, in a literal sense, a
party in interest, wherever the real estate of his wife is in-
tended to be conveyed, and thus brings him directly within
the reach of the earlier act,” that of April 14, 1835. In a
partition begun in 1888, the necessity of giving notice to the
husband of an heir, if he was still alive, was assumed by Krebs,
BP. da
Husband not necessary party.
A contrary view of the right of the husband of an heir to
be made a party, under the act of June 8, 1893, has been taken
by Gunster, J., in Powell’s Estate.” After a sale in partition
had been made, the husband procured a rule to show cause
why the sale and all proceedings should not be set aside, be-
cause he had not been named in the petition, decree and notices
and had had no notice of the proceedings. The rule was dis-
charged, the court saying: “ Conceding that the allegations of
his petition are true, we fail to see what standing he has to
interfere. He has no right to take this estate at the appraised
value, and he has no right to bid on the same in competition
with his wife or other heir.*4 And since the passage of the
act of June 8, 1893 (P. L. 344), which provides, among other
things, that ‘hereafter a married woman may sue and be sued
civilly in all respects, and in any form of action, and with the
same effect and result and consequences as an unmarried per-
19 Welch’s Appeal, 126 Pa. 297. 21 Citing Eby’s Estate, 5 Pa. C. C.
But his absence from the State, for 434; Endlich on Married Women, p.
more than seven years, unaccounted 14, § 12. Perhaps, as the husband is
for, furnished a presumption of his still a tenant by the curtesy initiate,
death. That the husband of an heir this interest entitles him to be made
should be joined, was held in Gross’ a party. Cf. Kelsey’s Appeal, 113
Estate, 6 York, 143. Pa. 119.
203 D. R. 508.
54 Partition in OrpHans’ Court.
son,’ there is no longer any reason why he should be named
in or made a party to the proceedings.”
Tenant.
Lessees for a term of years have such an interest in the land
as entitles them to be made parties.” Thus, one having a
lease for twenty years, for the purpose of mining and exca-
vating for petroleum upon three undivided fourths of a tract
of land, would need to be made a party to the partition, which,
otherwise, eventuating in the allotment to his lessors of a part
of the land which could be less profitably worked for oil, would
~be void as to him.”
Mortgagee.
The mortgagee, however, or other lien creditor of'a tenant
in common is not a-party to the partition proceedings.™ “A
mortgagee,” said the court,” “of an undivided estate is not
entitled to be made a party to a proceeding in partition. He
is not the owner of the estate, but a mere incumbrancer, who
cannot claim to elect or to refuse a purpart, to give security
for owelty, or to do any act affecting the title or estate of his
mortgagor. His estate is defeasible, and the moment his debt
is paid it ceases. What sort of decree would it be to award
him the share or purpart of his mortgagor, until his debt should
be paid? On what principle should a mere incumbrancer,
whose estate is liable at any moment to be defeated, claim the
right to say what share shall be taken for his mortgagor, or
to refuse to take any? He cannot thus interfere with the
lasting rights of the owner. How far a court would permit
him to come into the proceeding to defend his interests against
unfairness and thus protect his security is not the question.
In order to be entitled to be made a party, he must have an
estate, as owner, such as would confer the rights and powers
of an owner.”
Rectifying mistakes with regard to parties.
Mistakes in the petition in regard to the names of the parties
are not fatal. At the instance of the petitioner, the court
may allow him to amend it. ‘Having, e. g., named heirs of the
decedent, instead of his devisees, he will be allowed to make
22 Wistar’s Estate, 18 Phila. 80. 77 Pa. 151; McCandless’ Appeal, 10
23 Duke v. Hague, 107 Pa. 57. W.N. C. 563. Cf. Schellinger’s Es-
24Stewart v. Allegheny National tate, 16 Phila. 376.
Bank, 101 Pa. 342; Long’s Appeal, 25 Long’s Appeal, 77 Pa. 151.
Tue Peririon. 55
the correction, so as to avoid the necessity of setting aside the
inquest.” In Waln’s Appeal,” after the award of the inquest,
the petitioner filed a petition to amend the original by inserting
the names of two contingent remaindermen. The amendment
may consist in adding omitted names and the averment that
there are no other persons interested than those named.** The
party whose name has been omitted may intervene,” but, says
Hanna, J., “the correct practice is to apply to the court for
leave to intervene and be made party to the proceeding, not
to obtrude upon the record without leave or notice to the other
parties interested.’*° The inclusion in the petition of the
names of more than are interested in the estate, the want of
interest of the supernumerary parties appearing on the peti-
tion, cannot injure, and the irregularity is immaterial.
Description of estate.
The lands to be divided should be described in the petition.
All the decedent’s real estate in the county, at least, should
be included in the petition, including ground-rents. Not
merely the fact of the existence of these ground-rents, but
their amount, on what land they are charged, should appear.
If it does not, and the inquisition does not show what they
are, and that they were considered by the inquest and embraced
in the valuation, the inquisition should be set aside.*? In
Elliot v. Elliot,?* the land described was an island in the Sus-
quehanna river. There were connected with it valuable fish-
eries, which, however, the petition did not mention. The land
was allotted to an heir at the appraisement. Eight years after-
wards, an heir, who had just reached his majority, asked the
court to vacate its former decree. It refused to do so. Tilgh-
man, ©. J., remarks: ‘As to the fisheries, it would have been
better if they had been mentioned in John Elliot’s petition.
26 Schweetzer’s Estate, 4 Lance. 369.
274 Pa. 502. The writ having di-
rected a partition among the heirs
and legal representatives of the in-
testate, was, after a sale of the
land, amended so as to direct a par-
tition among the devisees of the de-
cedent.
28 Marcy’s Estate, 9 Kulp, 128. The
name of the husband of an heir was
added by amendment. McCoy’s Es-
tate, 11 Pa. C. C. 9; 1D. R. 60. So
were the names of the heirs of a
devisee. Christy’s Appeal, 110 Pa.
535.
29In Powell’s Estate, 3 D. R. 508,
the husband of an heir obtained a
rule to show cause why the sale
should not be set aside because he
had not been made a party.
30 Wistar’s Estate, 18 Phila. 80.
The proceedings will be set aside,
when the original petition gives erro-
neous names, and the petition to
amend is also full of errors. Gross’
Estate, 6 York, 143.
31 Wistar’s Estate, 18 Phila. 80;
Barclay v. Kerr, 110 Pa. 130.
32 Rex v. Rex, 38. & R. 533.
335 Binn. 1.
56 Partition In Orrians’ Court.
But as there is positive proof that the jury took them into
consideration, there is no reason to say that any substantial
injury has been sustained.” All liens or charges on the land,
if such as are not removable, ought possibly to be stated, but,
although the petition omits to disclose that the land is incum-
bered with a ground-rent, the court will refuse, for this rea-
son, to set aside the inquisition, the exceptant who alleges an
overvaluation of the land by the inquest having been warned
by citation of the filing of the petition, and having made no
objection to it, and it being clear that he has suffered no injury
from the imperfection of the petition.*
Improper inclusion or exclusion of lands,
The petition should ask only for the partition of lands be-
longing to the decedent, and not in the adverse possession of
another, or for any reason insusceptible of partition. Simply
to describe lands held in severalty by the petitioner or another
and not asking for a partition of it, but only of other lands
held in common by the petitioner and others, would be no
reason to refuse an inquest or to set it aside. The petition
asking for the partition of several pieces, the widow may inter-
vene for a rule upon the petitioner to show cause why one of
these pieces, conveyed, as she alleges, to her for life by the
heirs, should not be excepted, and, if, after hearing the evi-
dence, the court is satisfied of the truth of her petition, it may
make the rule absolute.*® The petition may be amended so
as to embrace land not included,*’ and the amendment may
be allowed after the return of the inquisition, and notwith-
standing that the inquest, informed by the parties of the inten-
tion to ask for it, included the added land in their valuation.**
The amendment may, in some cases, be made even pending an
appeal to the Supreme Court. In Wistar’s Appeal,® the peti-
34 Denning’s Estate, 4 Pa. C. C.
179.
39105 Pa. 390. In Schellinger’s
Estate, 16 Phila. 376 (1884), Pen-
35 Marcy’s Estate, 9 Kulp, 128.
36 Hunsecker’s Estate, 19 Pa. C. C.
14; 6 D. R. 202.
37 Christy’s Appeal, 110 Pa. 538.
38 Landmesser’s Estate, 9 Kulp,
524. In Christy’s Appeal, 110 Pa.
538, the court allowed an amend-
ment, requiring the inquest to ap-
praise and value the coal in the land
separately from the land and surface
rights. The court had no authority
thus to restrict the discretion of the
inquest.
rose, J., suggested that the petition,
showing that the petitioner was
grantee of an heir by a deed in the
nature of a mortgage; i. €., as se-
curity for u debt, ought to be
amended so as to show the amount
of the debt; and added that the re-
spondent would have ten days from
the time of notice of the amendment,
for the filing of an additional an-
swer.
Tue Petition. 57
tion asked for partition of a tract of land, in the description of
which was the following: “ Reserving and excepting therefrom
about twenty acres, known as the ‘ Barber Improvement,’ which
your petitioners are informed, is now being cultivated by one
Gray. This reservation is made without admitting title
or right of possession in said Gray or anyone else, except the
heirs of the said Richard Wistar, deceased, to said ‘ Barber’s
Improvement,’ or any part thereof, but the same is reserved
out of abundance of caution.” It afterwards appeared that
Gray occupied the twenty acres under a lease from the Wistar
heirs, and the commissioners, therefore, at the request of the
parties, included this lot in the partition made by them. After
certiorari from the Supreme Court, the Orphans’ Court, on the
application of the petitioners for the partition, ordered the
petition to be amended by striking out the clause quoted above,
despite the objection of the respondent. Says Sterrett, J.:
“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 com-
plain.”
Description of interests.
Not only should the land be described of which partition is
sought, and the parties interested therein named, but the facts
should be made to appear which will show what their estates
in the land are. If these facts are shown, an error in averring
the size of the estate arising therefrom will be venial. Thus,
the facts stated in the petition showing that the father of a
childless and brotherless heir had survived her, it was evident
that he could take, under the Intestate Law, only a life estate,
not being of the blood of the first purchaser. The petition
asserted, however, that he took a fee. The answer of the re
spondents alleging that the petitioner was but a life tenant
and objecting to the award of an issue, Ashman, J., said: “ We
think that the petitioner, as such life tenant, is entitled to a
decree, and, subject to this modification in the terms of his
petition, the prayer thereof is granted.’
40 Himelspark’s Estate, 8 D. R.
183. The fact that A. files a peti-
tion for partition of land, describing
it as the property of his father, does
not estop him, on abandoning the
proceeding, to bring ejectment for it,
and show that it descended to him
from his mother, and that the chil-
dren of his father, by another wife,
had no estate in it. Werkheiser v.
Werkheiser, 3 R. 326. In Walton v.
Wills, 1 Dall. 350, McKean, C. J.,
58 Partition 1n OrpHans’ Court.
Will.
The quantities of an estate held by the parties being deter-
mined by a will, it is necessary, if the petition requires the
court to decide whether under a will a daughter of the testator
takes a life estate or a fee, and that there was no disposition
of the remainder, that the will be made a part of the petition,
or be attached to it,“ as, when the interests to be divided are
the results of descent, the petition should show all necessary
dates and facts, including births, marriages, deaths, of all per-
sons interested in the property.
All material circumstances.
All material circumstances should be mentioned in the peti-
tion. Thus, if some of the parties are minors, it. should be so
stated, so that the court may appoint guardians to look after
their interests.” The omission to state the infancy, or even
to appoint a guardian, it was said, however, would not render
the proceeding void. The want of a guardian would impose
on the appellate court, on the petition of the former minor,
after reaching his majority, to vacate the partition, the task of
looking narrowly into the proceedings in order to assure itself
whether any wrong had been done to the infant.
The prayer.
The petition concludes with the statement that ‘“ your peti-
tioner, therefore, prays your honor to award an inquest to
make partition of the premises aforesaid to and among the
said parties interested, in such manner and in such proportions
as by the laws of this commonwealth is directed, if such peti-
tion can be made without prejudice to or spoiling the whole;
but if such partition cannot be made thereof, then to value
and appraise the same, and make return of their proceedings
according to law.’** In Cassaday’s Estate,** the petition of a
legatee, who was also a devisee, prayed for an order on the
said, in 1788: “It would be wellfor omitted to mention who the repre-
the party praying for a partition of
an intestate’s real estate to be par-
ticular in the names of the persons
entitled to shares, and of the prop-
erty of each, and, in this respect, to
pursue the form of a declaration in
partition, and of the return of a writ
de partitione facienda. But the court
refused to reverse the decree of the
Orphans’ Court, because the petition
sentatives of the intestate were. or
to state into how many parts the
land should be divided, this being
left to the sheriff to find out and
determine.
41 Drum’s Estate, 22 Pa. C. C. 551.
42 Elliot v. Elliot, 5 Binn. 1.
432 Rhone, 349, Forms.
449 W. N.C. 275.
Tue Petition. 59
executrix to sell real estate on which the legacy was charged.
As the land on which the legacies were charged was an un-
divided third, and the remainder in the other two-thirds lim-
ited on a life estate therein in favor of the widow, and as no
sale could be advantageously made without severing the ten-
ancy in common between the widow and the other devisee, and
as the fifty-ninth section of the act of February 24, 1834,*
directs that it shall be lawful to apply by petition or bill to
the Orphans’ Court, and that that court “may proceed, ac-
cording to equity, to make such decree or order touching the
payment of the legacy out of such real estate as may be
requisite and just,” the court awarded an inquest for the pur-
pose of making partition.”
451 P. & L. 1514; 1 B. R. Purd. 620. 46Cassaday’s Estate, 9 W. N. C.
275, Penrose, J.
60 Partition 1n Orpruans’ Court.
CHAPTER VII.
AWARDING THE INQUEST.
Notice before award of inquest.
As early as 1817,’ Tilghman, C. J., refers to a practice un-
der the act of April 19, 1794, which he stigmatizes as ‘“ very
irregular,” of awarding an inquest as a matter of course, with-
out notice to the widow or other children, and, while refraining
from reversing the decision before him because notice had not
been given to the parties, he added: “ Nevertheless, as the
Orphans’ Court may alter their practices in future, without
affecting anything which is past, I cannot help expressing a
wish that they would call all the family before them prior to
the award of an inquest.” “This suggestion,” as Agnew, J.,
points out in 1868, “was not generally adopted, and the
former practice continued, even after the passage of the revised
act of 29th March, 1832. Such notice, therefore, has not
been deemed necessary, and it would be productive of great
injury were we now to hold that the proceedings are irregular
because of the want of it. It would be better if the Orphans’
Court would require a rule to show cause to be issued and
served on all the parties in interest before awarding the in-
quest. Preliminary questions of jurisdiction and such as re-
late to the parties, property and possession could thus be settled
before incurring the expense and costs of the partition.”
Rule of court.
Some Orphans’ Courts have, following the suggestions made
by various judges of the Supreme Court, adopted rules re-
quiring a citation,® or a rule to show cause,* to issue to the
parties before awarding the inquest. In Hanbest’s Estate,® an
inquest having been awarded without notice, the court made
absolute a rule to show cause why the proceedings should not
be stayed until notice should be given to all parties to appear
and show cause why the court should not order the partition
1 Rex v. Rex, 3S. & R. 533. 3Lee’s Estate, 13 Phila. 291;
2Horam’s Estate, 59 Pa. 152; Wistar’s Estate, 18 Phila. 80;
Vensel’s Appeal, 77 Pa. 71 (1874); Scherr’s Estate, 19 W. N. C. 64.
Bauer’s Estate, 9 W. N. C. 576; 14 4Stark’s Estate, 9 Kulp, 525;
Phila. 464. Brader’s Estate, 6 Luz. L. Reg. 41.
51 W. N.C. 171.
AWARDING THE INQUEST. 61
to proceed, and the present order to stay to be vacated. In
Thomas’ Appeal,® the inquest was awarded, and at the same
time a citation to the parties, who filed an answer showing
reasons for not awarding the inquest.
Object of the notice.
The object of the notice, prior to the award of the inquest,
is to give an opportunity to the respondents by answer to
show why there should not be a partition at the present prayer
of the petitioner. Various reasons may be assigned, e. g., that
the petitioner, claiming to be the widow of the deceased, was
not lawfully married to him;’ that the petitioner is not jointly
seized of the land or of some of it;® that all proper parties have
not been named in the petition;® that a party, stated to have
been advanced, has not in fact been advanced;” that the peti-
tioner, alleging himself to be an alienee of an heir, paid no
consideration, and that his grantor was a lunatic,” or that his
interest as devisee is given to a trustee for him as a spend-
thrift, and that there is a vacancy in the trusteeship;” that
the petitioner, a cousin of the half-blood, was not an heir;*
that the petitioner, alleging himself to be a son of the decedent,
was not a son.\* The same objections can be made either on
the petition of intervening respondents to set aside the award
of inquest before the inquisition has actually been held, or on
exceptions to the inquisition when returned. ‘“ I understand,”
said Tilghman, C. J., “that on the return of the inquest,
every exception is open, which might have been made before
it was awarded,” and in 1874, Agnew, J., remarked that notice
prior to the award is unnecessary, “it being sufficient if it
appear at the return of the writ and inquisition taken, that
the parties had notice [1. ¢., of the holding of the inquisition],
at which time it is competent to make objections to the right
of partition as well as to the partition itself.”"* “When the
623 W. N. C. 409. Armstrong’s Estate, 10 W. N. C.
7 Thomas’ Appeal, 23 W. N. C. 409. 571.
8 Long’s Appeal, 77 Pa. 151; Bag- 15 Rex v. Rex, 3 8. & R. 533;
will’s Estate, 14 W. N. C. 311; 16 Vensel’s Appeal, 77 Pa. 71.
Phila. 342; Wistar’s Appeal, 115 Pa. 16 Vensel’s Appeal, 77 Pa. 71;
241. Richards v. Rote, 68 Pa. 248. After
® Wistar’s Estate, 18 Phila. 80. the issue of an alias order to sell
10 Ragan’s Estate, 7 W. 438. the land, the respondent petitioned
11 Sampson’s Estate, 4 D. R. 204. the court to vacate all proceedings,
12 Clark’s Estate, 134 Pa. 140. on the ground that she had learned
13 Davis’ Estate, 9 W. N. C. 380; that, under the facts, she was not
Kiegel’s Appeal, 12 W. N. C. 179. entitled, merely as widow, but as
14 Kates’ Appeal, 148 Pa. 471; heir of her children, to sole posses-
sion. Lee’s Estate, 13 Phila. 291.
62 Partition In Orpuans’ Court.
report of the inquest comes up for confirmation,” says Mercur,
J., “and the court is asked to decree partition, all persons in-
terested have a right to be heard. Objections to jurisdiction,
to the alleged rights of the parties and to the regularity of the
proceedings, may all be considered and determined.””
Rule to set aside.
When the inquest was awarded on the presentation of the
petition without notice, a convenient device for arresting the
execution of it was to apply to the court for a rule to show
cause why the award should not be vacated. ‘And even when
the award was made after notice, the same device may be re-
sorted to by inserting in the answer, or accompanying it with,
a prayer for such a rule. To the petition for a rule, there
may be an answer by the petitioner for partition; or to the an-
swer of the respondent alleging reasons why the writ of in-
quest should not have issued, there may be a replication. The
court may appoint an auditor to take testimony and report his
conclusions, or it may award an issue to be tried in the Com-
mon Pleas,’® or it may do both. Being dissatisfied with the
report of the auditor and not caring to decide the questions
of fact itself, it may set that report aside and direct the issue
to the Common Pleas.” On the certification of the judgment
on the issue to the Orphans’ Court, if it be favorable to the
right of the petitioner, the court may award an alias inquest.
Should, however, this judgment be subsequently reversed on
appeal from the Common Pleas, the Orphans’ Court should
refuse to carry forward the partition proceeding. If it has
already done so, on the assumption of the accuracy of the
decision upon the issue, its decision will be liable to reversal
on appeal.” If the court concludes, either after the report of
an auditor, or the decision of an issue in the Common Pleas,
that the petitioner was, for the reasons indicated by the ob-
jecting parties, not entitled to the partition, it vacates or sets
aside the award of the inquest.7!
Grounds for vacating.
The grounds for vacating an award of an inquest are those
which either prevent a partition at all or preclude the peti-
17 Gesell’s Appeal, 84 Pa. 238. 20Thomas’ Appeal, 23 W. N. C.
18 § 55, act March 29, 1832, 2 P. 409.
& L. 3338. 21Clark’s Estate, 134 Pa. 140;
19 Thomas’ Appeal, 23 W. N. C. Sampson’s Estate, 4 D. R. 204.
408.
Awarpine THE Inquest. 63
tioner from obtaining it upon his present petition. One of
these grounds is the sole and exclusive possession of one of the
respondents,” or of another, of the land, claiming it adversely
to the petitioner. Another ground is the nonexistence of the
relationship to the decedent, alleged in the petition as the
foundation of the petitioner’s right. If the petitioner is the
alleged widow and the respondents intervene with a denial of
her lawful marriage to the decedent, the court will, either with
or without the aid of an issue in the Common Pleas, decide
the question, arresting the proceedings meantime. If it de-
cides adversely to the petitioner’s relationship, the petition
must be dismissed.” The want of jurisdiction of the Orphans’
Court, because of the testacy of the decedent, may be the
reason assigned,** as may likewise be the invalidity of convey-
ances from the heirs to the petitioner, in virtue of which he
assumes the right to petition,” or the fact that, the petitioner
claiming as heir, the decedent died testate, devising the land
to the party asking for the vacation of the award.”
Awarding an issue.
The fifty-fifth section of the act of March 29, 1832,77 de-
clares that “the Orphans’ Court shall have power to send an
issue to the Court of Common Pleas of the same county for
the trial of facts by a jury whenever they shall deem it ex-
pedient so to do.” This act merely confers on the court the
power which had been exercised by a chancellor to direct an
issue. The verdict of the jury was merely for the purpose
of enlightening his conscience as to the fact in question. He
was not bound to accept, but, if not satisfied that it was right,
might reject, the verdict. Nor was he bound to send such an
issue to a jury, unless he deemed it essential to the proper
disposition of the case. The same rule applies to the Orphans’
Court. It may, e. g., decide that the petitioner is not a son
22 Flaherty’s Estate, 5 Phila. 477;
Richards’ Estate, 8 Lane. 205; Adel-
man’s Estate, 6 Kulp, 382. In: Cul-
ver’s Estate, 7 Kulp, 219, one claim-
ing to be widow, brought ejectment
for the land of which the heirs of the
husband, alleging it to be his, had
petitioned for partition. The pro-
ceedings were suspended until the
judgment in the ejectment, adverse
to her, when they were resumed.
23 Thomas’ Appeal, 23 W. N. C.
409. The heirs having conveyed to
one of them, their interest during
his life, this will be ground for
setting aside the inquisition. Brene-
man’s Estate, 1 Lane. 53.
24 Waln’s Appeal, 4 Pa. 502. After
the award of inquest, a demurrer
was filed, praying that the inquest
might be set aside.
25 McCorkle’s Estate, 184 Pa. 626.
26 Hiseman’s Estate, 13 Lance. 401.
272 P. & L. 3338.
64 Partition iv OrpHans’ Court.
of the decedent, in spite of a demand by him for an issue,”
and when the evidence is such as would not justify any other
than one particular finding by a jury, no issue need be or
ought to be awarded. If, e. g., the petitioner claims, by con-
veyance, the interests of heirs, and another person claims them
by descent, and the evidence of the conveyance is clear and
there is none to the contrary, so that no court would permit a
verdict against the conveyances to stand, an issue will not be
awarded.” If the evidence leaves the question, e. g., the
sonship of the petitioner, or the validity of the deed from
the heir under which the petitioner claims, in doubt, the
Orphans’ Court may award an issue. After the decision of
the court in the partition proceeding, whether by means of
an issue or otherwise, as to the right of a person to a share
of the estate, the court will not, fourteen months afterwards,
grant a review for the purpose of reinvestigating the same
question.
28 Kates’ Estate, 148 Pa. 471. In 29 McCorkle’s Estate, 184 Pa. 626;
this case there was a petition for Sampson’s Estate, 4 D. R. 204;
partition, and another petition for Welch’s Appeal, 126 Pa. 297.
an issue to determine the sonship of 30 Armstrong’s Estate, 10 W. N.C.
the petitioner. The Orphans’ Court 571.
may decide a dispute as to the heir- 31 Mealy’s Estate, 1 Ash. 363.
ship of the petitioner. Wistar’s Es- 32 Williams’ Appeal, 3 Atlan. 447;
tate, 18 Phila. 80; Davis’ Estate, 38 1 Cent. 604.
Leg. Int. 34.
Tur Inquzst. 65
CHAPTER VIIL.
THE INQUEST.
The commissioners.
The thirty-sixth section of the act of March 29, 1832,* con-
ferred on the Orphans’ Court power to appoint seven or more
disinterested persons chosen on behalf and with consent of the
parties, or, when the parties cannot so agree, to award an
inquest.” The petition might name the seven or more dis-
interested persons and be signed by all the heirs. The fourth
section of the act of April 27, 1855,> provides for three or
more commissioners, in these words: “In any proceeding in
court for the partition of real estate, the court may appoint,
on the agreement and nomination of the parties, three or more
commissioners to divide or value the same, with the same ef-
fect as a sheriff’s inquisition for the same purpose, and decree
a compensation for such service not exceeding three dollars a
day each, unless the parties interested shall have agreed in
writing to a larger compensation.” If the proceeding is
amicable, the commissioners might be named in the petition.*
In Wistar’s Appeal,® on the presentation of the petition ask-
ing for an inquest, a rule to show cause was issued. To this
rule the respondents appeared, and then, by paper filed, it was
agreed by all the parties that three persons, named, be nomi-
nated as commissioners. The nomination was approved by
the court. ‘It is very evident,” says Sterrett, J., “the com-
12 P. & L. 3363. Under the act of
March 23, 1764, the Orphans’ Court
could, on the petition of a child,
with the consent of the other par-
ties, appoint four or more persons to
an inquest. The right to appoint
four depended on the consent of the
other persons interested. A _parti-
tion was voidable if one of these
persons was but nine years old, hav-
ing no guardian or next friend when
the partition was made, on his
arrival at majority. Messenger v.
Kintner, 4 Binn. 97.
2As in Kreider’s Estate, 18 Pa.
374; White v. White, 5 R. 61;
Mason’s Appeal, 41 Pa. 74. Of.
Bishop’s Appeal, 7 W. & S. 25].
32 P. & L. 3389; 1 Br. Purd. 604.
5
4The widow and all the children
petitioned for the appointment of
three commissioners, in Kunselman
v. Stine, 183 Pa. 1. The inquisition
will not be set aside because, before
the award of the inquest, no effort
was made to agree on commissioners,
Comfort’s Estate, 6 York, 165. On
the petition of the widow, and of the
guardian of the only children, com-
missioners were appointed in Kann’s
Estate, 69 Pa. 219. Commissioners
were appointed, on application of all
the heirs, in Bartholomew’s Appeal,
71 Pa. 291; Benfield’s Estate, 7 W.
N. C. 575.
5105 Pa. 390; Giffen’s Estate, 30
Pitts. L. J. 60.
66 Partition 1n Orpuans’ Court.
missioners * * * are a substitute for the inquest, and
hence it follows that their duties are substantially the same.’”*
The inquest.
When the parties cannot agree upon commissioners, the
court is to award an inquest. “ The words ‘inquest’ and
‘sheriff’s inquisition,’ employed in these acts,” says Sterrett,
J., “are borrowed from the common law, and hence the func-
tions of an ‘inquest,’ composed of the sheriff and a jury, must
be ascertained by reference to common-law proceedings in
partition. After the interlocutory judgment, quod partitio
fiat inter partes, etc., was pronounced, the writ of execution
de partitione facienda issued, of course, to the sheriff, com-
manding him to make partition of the premises by the oaths
of twelve good and lawful men, to assign the parts in severalty,
etc., and to make report to the court under his seal and the
seals of the jurors. Then, upon the return of the inquest
thus executed, followed the final judgment that the partition
so made be and remain firm and stable forever.”’
Inquest waived.
Not merely by an agreement for the appointment of com-
missioners to do the work ordinarily done by an inquest may
the appointment of an inquest be rendered unnecessary. Even
its functions may be dispensed with. Thus, after the issue of
a citation to respondents to show cause why an inquest should
not be awarded, an agreement may be made by all the heirs,
waiving the inquisition and usual rules, and providing for the
sale of the property by H. W., as trustee. The trustee mak-
ing the sale, and returning it, it was confirmed and he was
ordered to make the deed to the purchaser on his paying the
purchase money.®
Several inquests.
For various reasons, which are indicated at another place,
the court may set aside the award of the inquest, and either
on the same petition, or on a new petition, may grant an alias
inquest. This also being set aside, a pluries award of an in-
quest may be made.” After the setting aside of the report of
61d. Ege, 79 Pa. 15. In Poundstone v.
7 Wistar’s Appeal, 105 Pa. 390. Everly, 31 Pa. 11, there were four
8 Scherr’s Estate, 19 W. N. C. 64. inquisitions, and the last was de-
9 An instance is found in Kille v. fective.
Tae Lyquesr. 67
seven men, appointed on the selection of the parties, an inquest
may be appointed by the court.’°
Number of inquest.
The inquest, like ordinary juries, was originally composed
of twelve men. The first section of the act of May 1, 1879,"
provides that: “ Hereafter, in all partition proceedings on real
estate, either in the Orphans’ Court or Court of Common
Pleas, in any county in this commonwealth, when, under exist-
ing laws of this commonwealth, an inquisition shall be held by
the sheriff of the county, such inquisition shall consist of six
men, instead of twelve men, as heretofore.”
Selection of the inquest.
The writ which issues from the Orphans’ Court, addressed
to the sheriff of the county, commands him in these or similar
words: ‘“ We, therefore, command you that, taking with you
six good and lawful men of your bailiwick, you go to and upon
the premises,” ete.” It is the duty of the sheriff, or possibly
of his deputy, to select these six men. ‘“ The selection of
the jury,” says Rogers, J.,% “implies judgment and discre-
tion, and partakes so much of a judicial character, that it can-
not be delegated by a person [1. €., the deputy sheriff] who is
himself but a deputy. The officer who selects a jury performs
an important duty to the parties, essential to the administration
of justice under the solemn sanction of his oath of office. It
is obligatory to be performed by himself, and not by another,
and a subsequent ratification of the act, improperly committed
to another, instead of validating it, would be very question-
able.” In this case, the jury of inquest was summoned by a
constable, who was directed by the deputy sheriff to call at the
office of Mr. M., where blank notices for the jurors had been
left, which Mr. M. would fill and give to him to serve. It did
not appear that Mr. M. had received from any one the names
of the jurors to be inserted in the blank notices. The deputy
sheriff, then, seems to have deputized Mr. M. to select the
jurors and insert their names in the blank notices left by him
with Mr. M. The Orphans’ Court, despite exceptions to the
partition, not made until after the inquisition had been held,
but made, so far as appears, within a reasonable time after the
10 White v. White, 5 R. 60. 138 MeMasters v. Carothers, 1 Pa.
112 P. & L. 3388. 324,
122 Rhone, 350.
68 Partition 1n Orpuans’ Court.
discovery of the facts, confirmed the partition. The decree
was reversed and the inquisition set aside by the Supreme
Court.
Character of jurors.
The jurors should be selected with a view to their probable
impartiality towards the several parties to the partition. In
1815, in a case in which exception was urged to the partition,
on account of a violation by the sheriff of this salutary prin-
ciple, Tilghman, C. J., remarked: “ Four or five of the jurors,
although not blood relations, were connected with John Young
{the second husband of the widow, who was the petitioner for
the partition,] by various kinds of affinity. I know nothing
of them, and, therefore, presume that they were all honest
men and of good character. But it is not right that connections
of this kind should be placed on juries; and I hope that, in
future, it will be avoided.’’*
Function of jury.
The primary object of the award of an inquest, that is, of
the proceeding in partition, is to make a division of the land
in specie, between those who are entitled to the possession, in
parts proportional to their undivided shares. When this is
found impracticable, then some other subdivision is permissi-
ble, and, when advantageous, required. If no division is found
practicable, then physical partition will not be made. But, in
all cases in which proportional division is not effected, it be
comes the task of the jury to appraise the land, integrally, or
in purparts.” These duties require an inspection of the
premises, and the inquest is bound to view them.*® The
sheriff accompanies them, and points out the lands described
in the writ. His return that he so took them to the premises,
would be conclusive, in the partition proceeding, that they
visited them, and could not be
14 Young v. Bickel, 1 8. & R. 466.
The heirs were a brother and sister,
and father.
15 Wistar’s Appeal, 105 Pa. 390.
16 Galbraith v. Galbraith, 6 W. 112;
Denning’s Estate, 4 Pa. C. C. 179.
17Denning’s Estate, 4 Pa. C. C.
179. It is not the duty or right of
the inquest to determine how much
of the appraised value is payable to
each of the heirs. If they return
traversed by exceptions.”
the land with $2,224, and that each
child is entitled to $222.40, the lat-
ter part of the finding is void. A
recognizance subsequently entered
into by the accepting heir to pay to
the heirs their shares “according to
the valuation thereof in the inquisi-
tion mentioned, with interest,” will
not preclude the showing that one
heir has been advanced. Blanchard
v. Commonwealth, 6 W. 309.
. Tue Inquest. 69
Survey.
In performing their duty, it may be appropriate or even
necessary for the inquest to have a survey made of the premises.
This may be deemed indispensable, even when no division of
the land is thought practicable,*® and if a division is to be
made, will often be unavoidable. In Galbraith v. Galbraith,
the land was returned, pursuing the statement of the petition,
as containing “‘ 200 acres, be the same more or less,” and as
valued “at and for the sum of $60 per acre.” Some years
later, a survey established that the land contained forty-three
acres more than 200; and the attempt was made to recover
a correspondingly increased amount of owelty. Sergeant, J.,
denying the right to increase or diminish the owelty, in this
way, remarks of the return of the inquest: “It was the act
of the jury, in the performance of a duty delegated to them by
law; and that duty was to view the tract, to examine its situa-
tion, quantity and quality, and assess a valuation accord-
ingly. After a jury have executed this duty on their oaths, and
returned the tract as containing 200 acres, and affixed to it a
certain price per acre, I can perceive no ground on which it
can be asserted that they intended the same price should be
affixed to each and every acre, which the land might after-
wards be found to comprise on a strict measurement. If that
was their intention, it was their duty to have had the survey
made; but as they dispensed with it, without objection that we
know of, the presumption must be that they did not intend it.”
Making plot or draft.
It is usual, and proper, when the land is subdivided by the
inquest, to cause a plot or draft to be made, indicating the
lines of division, and their courses and distances. ‘“ The plot
or draft is usually spread upon the records of the Orphans’
Court,” says Harding, J.,“‘and becomes, as it were, a very finger-
board to the purparts as fixed by the inquest.” Each of the
18 Galbraith v. Galbraith, 6 W. 112.
The land being divideu into five equal
purparts among five heirs, the com-
missioners reported that they had
had a survey made, the lines sepa-
rating the purparts marked on the
ground, and that they attached to
their report a draft or plot, show-
ing how they had parted the land.
Wistar’s Appeal, 105 Pa. 390. In
Massacer’s Estate, 4 Kulp, 13, Rhone,
J., said, there being equal division
of the land among three heirs, that
“we know of no act of assembly or
judicial authority that makes a
draft or plot necessary. Davis’ Es-
tate, 1 Luz. L. Reg., is not in con-
flict with this conclusion when read
in the light of its own facts.”
19 Davis’ Estate, 1 Luz. L. Reg.
405.
70 Partition in Orprans’ Court.
divisions should be described at length in the return, and
marked out also on the drafts. A simple reference in the
return to the drafts is insufficient. The court, if it deems com-
pliance with the suggestion very important, will, on exception,
set aside the return for defective description in it, or for
imperfect drafts. The drafts attached to the return should be
certified by the sheriff and the jury, and should be attached by
the sheriff. If the drafts before the inquest when it made the
inquisition are not returned, but copies of them, these copies
should have been made under the supervision of the sheriff and
jurors.”
Evidence before inquest.
The writ directs the sheriff, taking six good and lawful men,
to go upon the premises, “ and there in the presence of the
parties aforesaid by you to be warned, if, upon being warned,
they will be present,” to make partition. One object of this
presence of the parties is that they may be able to furnish
evidence or suggestion as to the propriety of any particular
mode of division of the premises, and as to the proper valua-
tions to be put on them, or the purparts into which they may
be divided. In 1788, an inquest was set aside for various
reasons, one of which was that a party had not been notified
of the time and place of holding the inquisition. “If he had
been present,” said McKean, C. J., “he might possibly have
urged such arguments as would have induced the inquest to
have put a higher estimate, or value, upon the premises, and
an opportunity ought to have been given him for that pur-
pose.”* It is the duty of the parties to be present, when noti-
fied of the time and place of the inquisition, and to offer to
show to the jury by competent testimony the valuation which
should be put on the land.”
Presence of sheriff at inquest.
The sheriff is present, not merely at the examination of the
premises, and the hearing of any evidence tendered, but, when
the jury consult together for the purpose of making their
decision as to the division of the land, or as to the appraisement
20 Td. perhaps, injure him only by raising
21 Walton v. Willis, 1 Dall. 351; a stronger presumption as to the
Ragan’s Estate, 7 W. 438; Klingen- accuracy of the appraisement, and
smith’s Estate, 130 Pa. 516. increasing the evidence which the
22Denning’s Estate, 4 Pa. C. C, excepting party must furnish. Cf.
179. Failure to do so, however, will, Jones’ Estate, 29 Pitts. L. J. 91.
Tuer Inquest. 71
of it, it is not usual for him to be absent. In 1835, Gibson,
C. J., remarked, in answer to an exception to the inquisition,
that the sheriff had been present at the discussion by the jury;
“ As to the presence of the sheriff at the consultation of the
inquest, it is sufficient to say that it is in conformity to the
practice in every part of the State, and that it does not seem to
have been attended with any improper interference of the
officer, in the present instance.”
23 White v. White, 5 R. 61.
72 Partition in Orpuans’ Court.
CHAPTER IX.
NOTICE OF INQUISITION.
Notice of inquisition.
The result of the inquisition affects the interests of all the
owners of the land. Its purpose is to determine upon the feasi-
bility of a division, and upon the particular mode of division, and
to appraise. All owners have a right to be present during the
examination of the premises by the inquest, and to assist them,
by furnishing evidence or argument, in coming to what they
regard a proper decision. It is necessary, therefore, that they
should have been warned of the time and place of holding the
inquisition, so early as to make attendance thereat reasonably
practicable. ‘ When a writ de partitione facienda is issued,”
said McKean, C. J., in 1788,’ “the sheriff is obliged to. sum-
mon all the parties to attend; and, if they do attend, he must
make the partition in their presence. The same thing is not,
indeed, expressly required in the partition or valuation to be
made under the acts of Assembly; [%. e., in the Orphans’
Court] yet, natural justice, and the constant rules of all courts
require that every person who is interested in the proceedings
should be summoned and heard. It may not, perhaps, be the
practice, nor is it necessary in this case, that it should be set
out in the return by the inquest, though we would wish that to
be done; but it is essential to justice that all parties should in
fact have notice.”
To whom notice given.
Life tenants, e. g., a tenant by the curtesy,? a father or
mother, who acquires a life estate by the death of a childless
son,” are entitled to the notice, for though not entitled to take
land at the valuation, and so not interested in keeping the
valuation down, they have a right to participate in the money,
and, therefore, are interested in making the valuation as high as
possible. Speaking of a life tenant, McKean, J., said: ‘If he
had been present [at the inquisition] he might possibly have
urged such arguments as would have induced the inquest to
have put a higher estimate, or value, upon the premises, and
1 Walton v. Willis, 1 Dall. 351. 3Ragan’s Estate, 7 W. 438;
2 Walton y. Willis, 1 Dall. 351. Klingensmith’s Estate, 130 Pa. 516.
Norice or Iyquisrrion. 73
an opportunity ought to have been given to him for that pur-
pose.”* An heir whom the petition alleges to have been
advanced his full share, should be given notice unless the fact
of his advancement has been already adjudicated, for it may
appear, on investigation, that he has not been fully advanced,®
and, possibly, an heir who has been notified may except to
the confirmation of the inquisition, or appeal from it, on the
ground that another has not been notified.®
Mode of notice.
The fifty-second section of the act of March 29, 1832," pre-
scribes the mode of giving notice, and directs that “ To all per-
sons resident within the county in which the court has jurisdic-
tion, notice shall be given personally or by writing left at their
place of abode; to all persons resident without the county,
personal notice as aforesaid shall be given, if, in the opinion
of the court, such notice be reasonably practicable; if other-
wise, by publication in such one or more newspapers,® as in the
opinion of the court, will be most likely to meet the eye of
those entitled to notice.” The first section of the act of March
18, 1875,° declares that “The judges of the separate Orphans’
Courts of this commonwealth respectively, shall have power
and are hereby authorized to establish, in their discretion, such
rules and regulations as they may deem proper for the publica-
tion of advertisements of * * * notices to parties in pro-
ceedings in partition; * * * Provided, That said court
shall have supervision of and regulate the cost of such publica-
tion in all cases, as well by special order in particular cases, as
by general rules; that said courts shall establish a bill of costs
to be chargeable to parties and to estates before them for settle-
ment, for the services of the clerks of said courts, respectively,
in the transaction of business of said courts.” The Orphans’
4Walton v. Willis, 1 Dall. 351;
Ragan’s Estate, 7 W. 438.
5 Ragan’s Estate, 7 W. 438.
6Ragan’s Estate, 7 W. 438;
Welch’s Appeal, 126 Pa. 297. In
Christy’s Appeal, 110 Pa. 538, a
return was set aside for want of no-
tice to some of the parties interested.
In Reid v. Clendenning, 193 Pa. 406,
a collateral attack for this cause by
one who had been notified, could not
be made.
72 P. & L. 3336; Sankey’s Appeal,
55 Pa. 495.
8 Reid v. Clendenning, 193 Pa. 406.
In Heller’s Estate, 6 Luz. L. Reg.
200, it is assumed that the second
section of the act of April 14, 1835,
1 Br. Purd. 606, regulates the mode
of notice, and that service by ad-
vertisement can be made only on the
oath of the applicant for the parti-
tion, that the names or residences of
some of the parties are unknown to
him. For failure to give the proper
notice, the inquisition was set aside.
92 P. & L. 3337; Krug v. Keller,
8 Super. 78.
74 Partition In Orruans’ Court.
Court may, by rule, require ten days’ notice of the holding of
the inquisition to be given; if the notice is served but four days
before the holding of the inquisition, it may be set aside.’? The
time must be mentioned in the notice, and also the place.
There being twelve tracts widely remote from each other, and
none of the exceptants being in fact present at the inquisition,
upon any of the premises, notice that the inquest will be held
upon “ the premises,” on Monday, June 19, 1889, at 10 a. m,, is
insufficient, and the return of the inquest will be set aside for
this reason." When the inquisition is adjourned from one day
to another, proper notice thereof should be given to the
parties.” The court sometimes specially directs what sort of
notice shall be given,” but not always.
Evidence of notice.
The return of the inquest, averring that all parties had been
notified, would be prima facie evidence that they had.” So,
when the inquisition was thus concluded, “ In witness whereof
as well the said sheriff as the inquest aforesaid to this inquisi-
tion, in the presence of the parties, interchangeably set their
hands and seals,” ete., Rogers, J., said, in Ragan’s Estate.*® “ Al-
though it does not expressly appear that all the parties were
present, yet we attach but little weight to this omission, as we
should presume that all things which the act requires from the
officer had been performed. But, notwithstanding that the
attestation of the jurors and the sheriff is prima facie evidence
of the fact of notice, or that the parties were present, yet it 1s
not conclusive evidence; and it is competent to show, on the
return of the inquisition, that this, which is absolutely essential
to the validity of the partition, has been wholly neglected, or
warned.”
10 Richards’ Estate, 8 Lane. 205.
The partition was in Lancaster
county. An heir residing at Steelton,
Dauphin county, was not served with
the notice until four days before the
holding of the inquisition.
11 Landmesser’s Estate,
524.
12 Welch’s Appeal, 126 Pa. 297.
Id
9 Kulp,
13 Id.
14Reid v. Clendenning, 193 Pa.
406.
15In Reid v. Clendenning, 193 Pa.
406, the sheriff’s return of the in-
quisition stated simply that the
parties named “had been severally
Eleven months afterwards,
by leave of court, the affidavit of
the sheriff was filed, showing service
upon all parties in the county upon
their attorney, and on all others by
advertisement in a paper of the
county, and a written acknowledg-
ment, dated five days before the affi-
davit by other heirs in the county
that T. W. Day, on whom the notice
had been served, was their attorney
and that the notice served on him
was notice to them.
167 W. 438. The return of the
inquisition is not conclusive. Davis’
Estate, 3 Kulp, 91.
Norice or Inquisrrion. 45
willfully omitted.” In Horam’s Estate,” the sheriff returned
“ February 23d, served on the heirs — inquisition to be held
on the 5th day of April, 1867, and then adjourned till the
25th day of April, on account of one of the heirs being in
the West, and could not get notice served on him. April
12th, notice accepted by G. A. Jenks for inquisition on the
25th of April, 1867.” The inquest returned that they, with
the sheriff, went on the premises on the 25th of April, 1867,
“ the parties on the writ having been duly warned, and as many
as chose being present.”** Said Agnew, J.: ‘“ We discover
nothing in the record evidencing a want of notice to all the
heirs. The return of the sheriff of his notice of inquisition is
general in its terms and includes all the heirs, and the inquisi-
tion sets forth that all were warned.”
Evidence of want of notice.
The record may itself furnish evidence of want of legal
notice. If, e. g., the order of the court awarding the inquest,
at the instance of one of two cotenants, directs ‘“ twenty days’
notice to be given to Griffin Rote, trustee,” and to the sherifi’s
return, is appended, “I hereby acknowledge to have received
from the sheriff due and legal notice of the meeting of the
jury of inquest to be held in pursuance of the within order,
etc., Griffin Rote, trustee of Lewis Richards,” it is clear from
the record that no notice to Lewis Richards, other than notice
to Griffin Rote has been made. If, then, the latter represents
Richards only because he has been appointed by the Orphans’
Court, in excess of its jurisdiction, trustee and committee of
Richards, who is weak minded, the partition, which is made,
will not divest the estate of Lewis Richards, and he could in
ejectment recover his undivided interest from the other party
to the partition, who accepted the land at the valuation, or
from his vendee.’® This conclusion is drawn, by Sharswood, J.,
from the language of the second section of the act of April 14,
1759 Pa. 152.
18 From such a return, in the ab-
sence of evidence to the contrary,
Krebs, P. J., said, in Welch’s Ap-
peal, 126 Pa. 297 (where the notice
returned had been of an inquisition
to be held November 24, 1888, and
the return of inquisition stated that
it had been held on November 30,
1888), that “we are bound to pre-
sume that the sheriff did his duty,
and that due notice of the time to
which the proceedings in inquest
were adjourned, was given to the
heirs and that it is true, as he re-
turns, that as many as saw fit were
present.”
19 Richards v. Rote, 68 Pa. 248.
The sheriff's return to the rule on
the heirs to accept or refuse at the
valuation, shows that it was served
also on “G. Rote, committee of
Lewis Richards, by reading the same
in his hearing.”
76 Partition in OrpHans’ Court.
1835,” which directs that “in the proceedings for the parti-
tion and valuation of an intestate’s real estate, the parties in
interest shall be named in the petition, decree and notices when
known; but if it shall appear on oath or affirmation, that the
names or residences of any of the parties are unknown to the
applicant for the partition, the Orphans’ Court shall have power
to direct such notices to be given to such parties, by publica-
tion in public newspapers, describing the parties as far as prac-
ticable, as shall appear to the court to be reasonable and proper;
and the proceedings shall be as effectual to all intents and pur-
poses, as if all the parties had been named in the proceedings.”
“Tt is very clear,’ says Sharswood, J., “ that this provision is
not merely directory, but is made necessary to invest the court
with jurisdiction over the person, and the interest which may
be in him in the land.””*#
Notice to minor.
The fifty-third section of the act of March 29, 1832,” directs
that “In all cases in which proceedings may be had in the
Orphans’ Court, affecting the interest of any minor, notice
of such proceedings shall be given to the guardian of such
minor, if such guardian be resident within the county, or within
forty miles of the seat of justice of the county, in the same
manner as is herein provided for in the case of resident persons
of full age; but if such minor have no guardian, it shall be
the duty of the party making application to the Orphans’
Court to cause notice of such application to be given to the
minor, if above the age of fourteen years, or, if under that
age, to the next of kin of full age; Provided, such minor or
next of kin be resident within the county, or within forty
miles of the seat of justice thereof; and if, at the next session
of the Orphans’ Court, application shall not have been made,
on the part of such minor, praying for the appointment of a
guardian, it shall be the duty of the court to appoint a suitable
person as guardian on whom notice shall be served, in all cases
in which notice shall be requisite.’’? If the minor becomes of
201 Br. Purd. 606.
21“ We hold then that when the
name of a party in interest does not
appear in the petition, decree and
notices, unless it appears by affidavit
that his name was unknown, and
publication made accordingly, his
share or estate will remain undi-
vided or undivested, if there is a sale
ordered, unless by some subsequent
act or conduct of such party or those
claiming under him, it has been rati-
fied.”
222 P. & L. 3337.
23 Of. Elliot v. Elliot, 3 Binn. 1,
where the nonintervention of a
guardian was not held to make the
partition voidable by the infant on
Norice or Inquisition. 77
age before the inquisition is held, his minority at the filing of
the petition is unimportant. But, to validate acts done by the
inquest or the court subsequent to its inquisition, the pro-
visions of the act just quoted should be observed.” If the
guardian should die, after notice to him of the time and place
of inquisition, but before the holding thereof, and no new one
should be appointed, the inquisition should not be proceeded
with. Ifit is, and is returned to court, it will,on exception, be set
aside.° The appointment of a new guardian afterwards can
have no effect on its validity.
Notice to alienee, husband, etc.
If an heir has conveyed his interest to another, who has not
put his deed of record, nor taken and retained possession of
the land, nor in any other way furnished to the other parties
the means of knowing of his acquisition, the partition effected
will not be collaterally assailable by such grantee, or those
who claim under him.** On the other hand, if one person
claiming to be alienee, but who is aware of a subsequent
sherifi’s sale of his grantor’s interest, institutes a partition in
which he ignores, in the petition, decree and notices, the
sheriff’s vendee, the partition will, as respects the latter, be in-
valid.** Notice to a husband of an heir is necessary, and without
it, the inquisition will be set aside.” And in Welch’s Appeal,°°
the court refused to set aside the inquisition for want of notice
to him, only because his absence for seven years justified the
inference of his death. Service of notice of the time and place
of meeting of the inquest upon an attorney of a party is
sufficient.” If X.,a testamentary trustee of the shares of two of
the devisees, and as attorney for some of the other devisees,
files the petition for partition, naming himself as trustee as a
party, and service is made upon him, as attorney, of the notice
his reaching majority. Vide remarks v. Rote, 68 Pa. 248, that “when the
of Sharswood, J., in Richards v. name does appear [in the petition,
Rote, 68 Pa. 248. decree, and notices], it will be con-
24 Comfort’s Estate, 6 York, 165. clusively presumed in favor of the
25 Cf. Graham’s Estate, 14 W. N. regularity of the proceedings of a
C. 31; Swain v. Fidelity Ins. Co., 54 court of justice, that due and regu-
Pa. 455; Stewart v. Miller, 4 W. N. Jar notice has been given, even
C. 552. though it is not affirmatively shown
26 Korn’s Estate, 6 D. R. 435. in the record,” is cited by Agnew, J.,
27 Merklein v. Trapnell, 34 Pa. 42. in Vensel’s Appeal, 77 Pa. 71.
28 Thompson v. Stitt, 56 Pa. 156. 30126 Pa. 297.
29 Davis’ Estate, 3 Kulp, 91. A 31 Reid v. Clendenning, 193 Pa. 406.
dictum of Sharswood, J., in Richards
78 Partition In OrpHans’ Court.
of the inquisition, this will be sufficient to affect him as trustee,
and his cestwis que trust. “The important fact is knowledge,”
says Slagle, P. J., “and he cannot be heard to say in a col-
lateral attack on the partition by his cestuis que trust, that he
was informed as attorney, but not as a party. Neither law nor
equity requires that titles of innocent parties [purchasers at
the partition sale] should be stricken down upon such techni-
cality.”’°?
Presence at the inquest without notice.
The object of the notice is to give to the party the oppor-
tunity to be present at the inquisition. If he should, in fact, be
present, the want of previous notice would be immaterial.**
Thus, the averment in the inquisition that it was made “in the
presence of the parties,’* is sufiicient to support the partition,
until its untruth is shown.
32 Td. 34 Ragan’s Estate, 7 W. 430.
33 Comfort’s Estate, 6 York, 165.
Return or InQuisirion. 49
CHAPTER X.
RETURN OF INQUISITION.
Return of the inquisition.
To the writ of inquest, the sheriff and jurors make return to
the court, on the return day, showing what they have done in
pursuance of its command, and the return is confirmed nisi, as
a matter of course.’ Its first duty is to make equal physical
division of the land if practicable, and only when this is im-
practicable, to divide unequally, and appraise the purparts, or,
not dividing at all, to appraise the land. Parties dissatisfied
with the return itself, or with the acts done by the inquest
and reported in the return, may file exceptions;? and if
the truth of these exceptions is not manifest on the
record, or admitted, they must be supported by evidence. The
court may appoint an auditor to take the testimony, and re-
port the facts and a recommendation of a decree,’ or it may
decide for itself, on depositions.* If the return is, as such,
defective, in leaving uncertain what the inquest did, or what
they intend to be understood to have done, the court ought,
even without exceptions of parties, to set it aside.® The re-
turn, ¢. g., stating that the property could not be divided
“ without spoiling the whole thereof,” and adding a list of five
tracts of coal, with the area in acres, and a distinct valuation
of each, and of three surface tracts, corresponding respectively
with the first three of the coal tracts, and with distinct valua-
tions, leaves uncertain, especially in view of the fact that
there are eight heirs, whether the inquest intended that the
land should be considered as undivided, and in a single pur-
part, or in eight purparts. Says Trunkey, J.: “ By returning
that the property cannot be divided, some foundation is laid,
if the inquisition be approved, for one of the children to
claim the whole under the provisions of section 87 of the act,
or to demand, in case of bidding, that the bids shall be for the
whole, and not for a parcel. The return of the inquest should
1Bishop’s Appeal, 7 W. & S. 251. 4Kreider’s Estate, 18 Pa. 374;
2None can except, who does not White v. White, 5 R. 61; Young v.
show affirmatively how he is injured Bickel, 1 8S. & R. 467; Stark’s Es-
by the inquisition. Jones’ Estate, 29 tate, 9 Kulp, 524.
Pitts. L. J. 91. 5 Christy’s Appeal, 110 Pa. 538.
3 Klingensmith’s Estate, 130 Pa.
516.
80 Partition in OnpHans’ Court.
be free of uncertainty or ambiguity. Whether the land be
appraised as an entirety or be divided into purparts or shares,
should clearly appear.’”®
Uncertainty as to mode of division.
Besides uncertainty as to whether the land is returned as
divided, there may be uncertainty as to the purparts, if it be
assumed that the land is returned divided. “If divided, each
purpart ought to be so described in the return of the inquest
that it may be easily found and identified. Were each tract,”
says Trunkey, J., “well described in the petition, and des-
ignated [therein] by a number, a reference [by the inquest]
to the tract by its number might be sufficient, but it would be
better practice to fully describe it in the return.” It is im-
proper to designate purparts merely by a number adopted, not
by the petition, but by the inquest alone, and by area. A
designation “ eighty-eight acres, No. 5 coal,” is not enough to
identify the tract thus described by the inquest, with a farm
devised as a farm, to a daughter, without stating the area, or
that it contained coal. So, describing one purpart as “ seventy-
five acres, No. 4 coal,” does not sufficiently identify it with a
tract described in the amended petition, as containing seventy-
five acres more or less.”
Division, eto.
The inquest should report that they have considered the
possibility of making a division, and have found division im-
possible without spoiling the whole, when they report the land
undivided, and appraise it. Omission to make such an aver-
ment will be ground for setting aside the return. If a
division is reported, with or without appraisement, the mode
of the division, as injurious or otherwise, to the estate, or as
equal or unequal, could be made the subject of an exception.
In Young v. Bickel, Henry Bickel died without issue, leav-
ing to survive him a widow, a father, a brother and a sister.
61d.
7Christy’s Appeal, 110 Pa. 538.
As the inquest must exercise its dis-
cretion in making division of the
land, the court will be reluctant to
interfere with its judgment. As it
could not impose its own opinion on
the second inquest, a second inquest
might return the same division as
the first, and so on toties quoties.
Snyder’s Estate, 1 Wilcox, 190.
8 Bishop’s Appeal, 7 W. & S. 251.
In McCall’s Appeal, 56 Pa. 363, the
widow excepted because her third
had not been set off to her by metes
and bounds.
9158. & R. 467. The appraisement
should be based on the market value
of the fee and not on the rental
value. Carothers’ Estate, 37 Pitts.
L. J. 354.
Return or Inquisrrion. 81
The widow’s second husband petitioned for partition. The
land was divided into two parts, returned as equal in value,
and one of them was assigned to the petitioner, in right of the
widow, and the other to the father. The depositions showed
that the purpart allotted to the widow was worth £1,600, and
that assigned to the father from £450 to £500, but that the
rents each yielded were about $80. In reversing the decree
of the Orphans’ Court, Tilghman, C. J., said: “ Now it being
conceded that Young’s part is thrice as valuable as the remain-
ing part, it follows, that if Mrs. Young [the widow] survives
John Bickel [the father] the reversioners will be greatly in-
jured, because, instead of coming into possession of one-half
of the estate of their brother, Henry Bickel, according to their
right, they will not have more than a fourth part. The parti-
tion, therefore, ought not to stand.” The allotment of the pur-
parts by the jury, if under the circumstances, they had no
power to allot, may also be the subject of exception. Should
the inquest report a valuation of the whole, as one mass, under
the mistaken notion that if they could not divide into as many
parts as heirs, they could not divide at all, an exception may
be founded on this error.’? The refusal to divide may be a
ground of exception. But, when it was objected that the land
might have been divided horizontally, into one purpart of the
coal, and the other of the surface, the court dismissed the ex-
ception, remarking: “ We are not given legal authority for this
proposition, nor have we evidence of the question of fact.”
Absence of appraisement.
In every case in which land, in specie, cannot be apportioned
according to their rights among the children, an appraisement
of the whole or of the purparts is necessary. “And if,” says
Huston, J., “in any of these cases, an appraisement is not
made, the inquisition is radically defective and must be quashed
or set aside as contrary to express enactment; and for the
further reason that it arrests all further effect of the proceed-
ing to divide the estate and all further action by the court.
In every instance which I have known or heard of, such an
inquisition has at once been set aside by the court.” There
being a widow and two children, if the inquest finds a division
into two purparts of equal value possible, but none other, ap-
10 Rex v. Rex, 3 S. & R. 533. 12Seider v. Seider, 5 Wh. 208
11 Stark’s Estate, 9 Kulp, 525. (1839).
6
82 Partition In Ornpuans’ Court.
praisement is necessary. For omitting the appraisement, the
inquisition will, on exception, be set aside.¥
The valuation.
Objection may be made to the valuation of the land on the
score that it is too small. If, e. g., the inquest should divide
the land into as many parts as there are heirs and allot one
to each, an allottee may object that the appraisement of his
is too great, or that of the others too little; in short, that the
division is not equal. As prior to the adoption of a method
of bidding, the heirs were preferred by sex and seniority in
the election to take the land or its purparts at the valuation, a
low valuation proved a benefit to the preferred and a corre
sponding detriment to the deferred heirs. The right in the
latter to except to the valuation has been recognized. In 1817
Tilghman, C. J., remarked: “ Where an estate is manifestly
and greatly undervalued, I have no doubt but it is the duty
of the court to set aside the inquest. But it ought to be a
clear case. The jury are intrusted by the law with the valua-
tion and they act upon oath. Besides, it is generally to be
supposed that they are better judges of this matter than the
court. Great regard should, therefore, be paid to their opin-
ion. Sometimes, however, it happens that they mistake, and
the court may be able to trace the cause of it.” In Kreider’s
Estate,’® Black, C. J., seems to limit the redress on exceptions
to cases only of fraud or plain mistake. “An inquest,” he
remarks, “may be set aside where the jury has made a plain
mistake of fact or law, or where fraudulent arts have been
practiced by an interested party to procure such a report as he
desires. A valuation of the land at a grossly inadequate
price may be evidence of mistake or fraud.” When, however,
the evidence leaves it uncertain whether the valuation is a just
13 Benfield’s Estate, 7 W. N. C.
575.
14 Giffen’s Estate, 30 Pitts. L. J.
60. No one who does not show that
he is injured by it, can cause the in-
quisition to be set aside. Jones’ Es-
tate, 29 Pitts. L. J. 91. In Mes-
singer v. Kintner, 4 Binn. 97, an
appraisement of a tract, as contain-
ing 173 acres 73 perches, strict
measure, which, in fact, con-
tained 270 acres, was deemed a
strong indication of want of proper
notice to the parties, and of observ-
ance of the prescribed form of pro-
cedure.
15 Rex v. Rex, 3S. & R. 533;
White v. White, 5 R. 61; Stark’s
Estate, 9 Ivulp, 525. The omission
to appraise ground-rents was _ ex-
cepted to in Rex v. Rex, 3 S. & R.
533.
1618 Pa. 374. The fact that a
younger heir offered to give one-
third more for the land than the
valuation, was not decisive against
its justness.
Return or [nQuisirion. 83
one, still more when the preponderance of evidence greatly
favors its justness, there is no reason for setting the return
aside because of the valuation. A rise in the value of the
premises since the conclusion of the partition eight years ago
would be no reason for setting it aside at the suit of an heir
who was a minor without guardian when the partition was
made."
Overvaluation.
Whether an overvaluation is a cause for setting aside the
inquest has been doubted. In Denning’s Estate, A. owned
one-sixth and B. five-sixths of the land. On A.’s petition an
inquest was awarded, which appraised the land at $3,000. B.
excepted that this valuation was too great. Said Hanna, J.:
“ But the principal cause of complaint is that the property is
overvalued. We are not aware that this has ever been held
a valid reason for setting aside an inquisition, and if it was a
sufficient reason it is not clear that the jury erred in their esti-
mate. The property in question is assessed for taxation at
$2,000, and is subject to a ground-rent of $36 per annum,
making a total valuation of $2,600, and rents at the present
time at $23 a month. A witness, familiar with the value of
property in the neighborhood, estimates the value of the prem-
ises to be $2,200, subject to the ground-rent, or $2,800 in all;
while another, not so well qualified to express an opinion, esti-
mates it to be worth but $2,500 in all, by reason gf the house
needing much repair. It is a significant fact that the except-
ant, who is familiar with the property and its neighborhood,
does not undertake to say that the valuation by the jury is ex-
cessive, and that he would refuse to accept it at that sum. It
thus appears that the appraisement by the jury is not an un-
reasonable valuation and it is not improbable it may be realized
at a sale. However this may be, the exceptant is not obliged
to pay the valuation fixed by the jury any more than the peti-
tioner. If the latter elects to take the property, the exceptant
will be the gainer, and, should both refuse, he may be able to
purchase the property at what he conceives it to be really
worth. In either event he cannot be the loser.”
Application in behalf of widow.
The appraisement of the land must, as far as the widow is
concerned, be made of it in the condition in which it is at the
17 Elliot v. Elliot, 5 Binn. 1. 184 Pa. C. C. 179; 18 Phila, 224.
84 Partition 1In Orpuans’ Court.
time of the inquest, including buildings and improvements, al-
though these may have been put on the premises by the heir
or devisee since the husband’s death. “All that the wife can
claim,” said Tilghman, C. J., in 1819, “ where the husband
dies seized, is one-third of the land in the condition in which
it is found at the time when her title is thus complete, viz., at
the death of her husband. But if, after her title is thus com-
plete and before assignment of dower, the heir erects buildings
or makes other improvements, the widow shall be endowed of
one-third part of the estate, according to its value at the time
dower is assigned to her, because it was the folly of the heir
to make improvements on land which he knew to be subject
to dower.” And the alience of the heir is in no better situa-
tion than the heir. If he makes improvements, even in igno-
rance of the existence of the widow, he entitles her to one-
third of the value of the land with the improvements.” The
widow might, however, estop herself from claiming a share in
the improvements. The valuation, taking place two and one-
half years after the husband’s death, is of the land in its then
condition. The inquest cannot embrace rents and profits of
coal mined from the land during this interval. A share in
these can be recovered by the widow by filing a bill for an
account.”
Averaging estimates.
The parties are entitled to the judgment of the inquest as to
the value of the premises. Should they agree to be governed
by lot, or, probably, should they agree that each should put
down his estimate, and that they should adopt and return to
court the average of these estimates, the return would be set
aside. But the taking of such an average, without the agree
ment in advance to accept it, whatever it may be, and with
deliberation afterwards, resulting in its adoption, will not be
cause for setting aside the valuation. In White v. White,”
each juror put down an estimate; the estimates were added
up, and the sum was divided by twelve, the number of jurors.
After this was done, “they talked on the subject and agreed
19 Thompson v. Morrow, 5 8. & R. In Stark’s Estate, 9 Kulp, 525, an ex-
289. ception alleged that the sheriff and
20 Janney’s Estate, 12 Pa. C. C. three of the jurors made great efforts
636. to depress the value of the premises in
21 Haudenscheid v. Haudenscheid, the judgment of the other jurors, in
5 Cent. 702. order to benefit one of the heirs. As
225 R. 61 (1835); Kreider’s Estate, it was not supported by evidence, it
18 Pa. 374; Rex v. Rex, 3 8. & R.533. was dismissed.
Return or Inquisrrion. 85
on $26.25” per acre. Gibsen, C. J., remarks: “It satis-
factorily appears that recourse was had to a medium value
extracted from the separate estimates of all the jurors, not as
decisive of the question, but as an approximation to unanimity.
There was no agreement to stand to the result; and the sum
produced was adopted as the ratio, but on further reflection
and consultation. Every assessment of value necessarily in-
volves a compromise of opinion, and a juror may, therefore,
yield his judgment to that of the majority without compro-
mising his principles, because the attainment of the unanimity
which the law requires, would seldom be had without it. When there are two® or more heirs’ and a widow, if
the land can be divided into three parts, equal in value, the
widow will be entitled to one of them; and, generally, the
widow has a right to one-third of the land in specie, if it can
be set off to her, and the respective shares of all the heirs can
be set off to them;® but it does not appear whether the widow
is to receive one-third in specie, unless the heirs also severally
receive theirs. A widow, electing against the will, is entitled
to her part in severalty, as she would be in cases of intestacy.
Thus, the land being devised to the executors when there was
no lineal heir, it was divided, as such division was found prac-
ticable, into two equal parts, and one was allotted to the widow,
and the other to the executor.? The widow takes, of course,
only a life estate in the purpart allotted to her.”
The widow — Collateral heirs.
When the intestate leaves a widow and collateral heirs, “ but
no issue, the widow shall be entitled,” says the first section of
the act of April 8, 1833," “ to one-half part of the real estate,
including the mansion-house and buildings appurtenant thereto,
for the term of her life, and to one-half part of the personal
estate absolutely.” When a division can be made into two
equal parts, on one of which are the mansion-house and ap-
purtenant buildings, it is the duty of the inquest to make the
division.!? The other party entitled being merely a life tenant,
the division may be made. Thus, the heirs of the husband
being his brother and sister, and his father, taking a life estate,
there could be equal division between the widow and the
father. But, when the division into halves, on one of which
is the mansion-house, cannot be made without prejudice to the
half not allotted to the widow, it is the duty of the inquest to
refuse to divide, and to appraise the land.* It may be that
5 Bishop’s Appeal, 7 W. & 8. 251.
6 Benfield’s Estate, 7 W. N. C. 575.
7Division was made between a
widow and nine children in Davis v.
Dickson, 92 Pa. 365.
8Gourley v. Kinley, 66 Pa. 273;
McCall’s Appeal, 56 Pa. 363;
Kunselman v. Stine, 183 Pa. 1; Ran-
kin’s Appeal, 95 Pa. 358; Steel’s Ap-
peal, 86 Pa. 222; Carr’s Estate, 38
Pitts. L. J. 343.
9 Boyer’s Estate, 8 Pa. C. C. 177.
The remarks of Sharswood, J., in Mc-
Nickle v. Henry, 8 Phila. 87, are
probably not to be understood as
denying the right of the widow to
take her purpart by metes and
bounds, when this is practicable.
10 Davis v. Dickson, 92 Pa. 365.
111] P. & L. 2408.
12McCall’s Appeal, 56 Pa. 363;
Kline’s Estate, 1 Leg. Gaz. Rep. 428;
Carothers’ Estate, 37 Pitts. L. J. 354.
13 Young v. Bickel, 1 8. & R. 467.
14 McCall’s Appeal, 56 Pa. 363.
Cf. Poundstone y. Everly, 31 Pa. 11,
which holds the contrary; Read, J.,
says: “It was not very well con-
sidered,” and that “the syllabus is
the most accurate part of it.”
92 Partition In Orpuans’ Court.
when the half with the mansion-house can be set off without
prejudice to the residue, the widow is entitled to it, although
the other half cannot be divided among the collateral heirs,
without prejudice to it. Thus, in Poundstone v. Everly,” the
court below holding that “ the widow was not entitled to have
her share set off to her in severalty, unless the land could be
so divided that the collateral heirs could also have their re-
spective shares of the remainder in severalty,” there being
seven such heirs, the Supreme Court confirmed the third in-
quisition which divided the land into halves, and allotted that
which had on it the mansion-house to the widow, although the
other half had not been subdivided among the seven heirs.
The cause was, however, remanded to the Orphans’ Court, in
order that the other half might be divided among the heirs.
The Intestate Act gives the widow specifically the half on
which stands the mansion-house; and, though McCall’s Appeal
annexes, as a condition, that the land shall not be prejudiced
by the division, no decision has, as yet, annexed the condition
that the other half shall be partible, without prejudice, among
the collateral heirs. If an opened coal mine is allotted to the
widow, it is error to award to the collateral heirs, along with
a purpart, the right of access to the coal mine, and of taking
coal for their own use.”®
Tenants for life.
If there are one or more persons entitled to possession as
tenants for life, whether or not there are others entitled to a
possession, as tenants in fee, and proportional division can be
made between them, it is probably the duty of the jury to
make the division. Said Paxson, J., in 1880: “Tt is the
1531 Pa. 11. Cf. Seider v. Seider, 17 Kankin’s Appeal, 95 Pa. 358.
5 Wh. 208, decided under the fourth
section of the act of April 19, 1794,
which gave one-half, including the
mansion-house, to the widow, “ ex-
cept in cases where, in the judgment
of the court, the estate cannot prop-
erly be divided.” It was held, the
inquest returning that division
was impossible, but having omitted
to make an appraisement, and no
further action being taken, the col-
lateral heirs could not expel the
widow from the premises by eject-
ment.
16 Carothers’ Estate, 37 Pitts. L. J.
354,
The life tenant was a husband of
one of the devisees, entitled as ten-
ant by the curtesy. Cf. Waln’s Ap-
peal, 4 Pa. 502; Young v. Bickel, 1
S. & R. 460; Seider v. Seider, 5 Wh.
321; Walton v. Wills, 1 Dall. 351.
It is assumed in Young v. Bickel, 1
8. & R. 466, that after partition be-
tween two life tenants is made, after
whose life estates one person has
the remainder, on the death of
one, the partition still remains good,
for the life of the survivor, as against
the remainderman.
Division or tae Lanp. 93
duty of the inquest to set off to the widow her share by metes
and bounds, if it can be done. Bishop’s Appeal, 7 W. & S.
251. By analogy, the same rule may be extended to other
tenants for life. It is true, this leaves the remainder open to
further partition at the death of the tenant for life, but this
is an inconvenience that arises where the interests of the ten-
ants are different in the time of their duration. Poundstone
v. Everly, 7 Casey, 11. If the property cannot be so parted
and divided that the share of the tenant for life can be set off
to him, the law requires that it shall be valued, and it may
then be taken by the heirs in the manner before pointed out.”
Equal division.
As we have said, the primary object of partition is to make
a division of the land itself among the heirs, or devisees, accord-
ing to their respective interests in it; if there are three equal
tenants in common, then to eachone-third in value of the land; if
there are five, then to each one-fifth in value of the land.
In 1841, Kennedy, J., remarked: “ The thirty-sixth section,”
which is the first section authorizing the Orphans’ Court to
entertain applications for the partition of real estates, con-
templates and provides for the partition or division of the
estate where it will admit of it without prejudice to or spoiling
the whole of it, into as many purparts or shares of equal value
each, as there are children or representatives of the intestate.”™
The division is made, not according to area, but to value. A
tract of 100 acres would not be divided between two heirs, by
cutting it into two pieces of fifty acres each, unless these pieces
were of equal value. Some appraisement must, therefore,
necessarily accompany the act of division. But no appraise-
ment need be returned to the court by the inquest or the com-
missioners. It is enough for them to report that the parts, if
allotted to five heirs, having equal shares in the estate, are of
equal value." If the division vere made between a widow and
18 Wistar’s Appeal, 105 Pa. 390;
McCandless’ Appeal, 10 W. N. C.
563; Christy’s Appeal, 110 Pa. 538.
When partition is made between the
widow and heirs, the purparts must
be appraised according to their
market value and not according to
rental value. Carothers’ Estate, 37
Pitts. L. J. 354.
19 Cf. the act of March 29, 1832,
2P. & L. 2363.
20 Sampson’s Appeal, 4 W. & S. 86.
21 Wistar’s Appeal, 105 Pa. 390;
Massacer’s Estate, 4 Kulp. 13. In
Massacer’s Estate, the widow re-
leased her right, and partition was
then had between the three heirs.
The land was divided into three pur-
parts of equal value, which the in-
quest allotted to the heirs severally.
94 Parrrrion In Orpuans’ Court.
two lineal heirs, it would be necessary to state that the three
pieces, into which the land was divided, were of equal value.
If there was but one heir and a widow, it would need to
appear, from the return, that the piece allotted to the widow
was of half the value of that allotted to the lineal heir. Of
course, this would be, in substance, done, if the piece allotted
to the widow were returned appraised at $1,000, and that al-
lotted to the heir at $2,000. The appraisement must be of
the fee. If the values of the fee are unequal, the fact that
their rental values are the same will not make the division
proportional.”
Equal division — Allotment.
When proportional division is made, the commissioners,” or
the inquest, not only make the division, and ascertain its pro-
portionality or equality, but they allot the purparts to the
parties entitled respectively. ‘As no preference,” says Ken-
nedy, J., “is given by the terms of the section,™ either on
account of age or sex, in making choice of the shares, as they
shall be set out and designated by the inquest, it would, there-
fore, seem as if the sheriff, or the sheriff and the inquest, were
to assign to each one his or her share, as in the case of a parti-
tion at common law. Co. Litt., §§ 248, 249. And that the
court, in the language of the section, is merely to give judg-
ment that the partition thereby made [%. e., by the inquest, or
seven men agreed upon by the parties], be firm and stable
forever, and that the costs thereof be paid by the parties con-
cerned.” “Such, we think,” said Sterrett, J., in 1884, “has
been the generally accepted construction of the statute; and,
so far as we are aware, the practice of the Orphans’ Courts
has been in accordance therewith.”*® Nor have any later
statutes changed the power and duty of the inquest or com-
missioners to allot the purparts, when they make equal divis-
ion.” Hence, the commissioners returning that they had
divided the land into five purparts of equal value, and then
setting out the purparts by number, giving boundaries, and
22 Young v. Bickel, 1 8. & R. 467. 27 Wistar’s Appeal, 105 Pa. 390.
23 Wistar’s Appeal, 105 Pa. 390; Not the second section of the act
Giffen’s Estate, 30 Pitts. L. J. 60. of April 11, 1835, 2 P. & L. 3360.
24§ 36, act March 29, 1832, 2 The act of May 5, 1841, 2 P. & L.
P. & L. 3363. 3360, affects only partition in the
25 Sampson’s Appeal, 4 W. & 8. 86. Common Pleas. The act of April 22,
26 Wistar’s Appeal, 105 Pa. 390. 1856, 1 Br. Purd. 1642; 2 P. & L.
Giffen’s Estate, 30 Pitts. L. J. 60. 3300, does not affect the question.
Diviston oF THE LAND. 95
adding. after the description of “ Purpart No. 1,” “which said
piece, parcel or lot of land, with the improvements, we have
divided and allotted to Sarah W. Gilfillan, wife of James M.
Gilfillan, and one of the children and heirs of said Richard
Wistar, deceased,’ and after the descriptions of each of the
other purparts, adding the statement that they have allotted
it to a child and heir of the decedent, the court properly en-
tered a decree, adjudging that “said partition and allotment
be and remain firm and stable forever.’
Fewer purparts than heirs — § 39, act March 29, 1832.
The thirty-ninth section of the act of March 29, 1832,°° con-
templates a division into fewer purparts than heirs. “ When
such estate cannot conveniently be divided into as many shares
as there are parties entitled, the seven men appointed as afore-
said, or the said inquest, shall make a just appraisement of
the respective purparts or shares into which they may divide
the estate, and thereupon the court may order the shares suc-
cessively to the parties entitled, to make choice therefrom, in
the order and according to the rules hereinbefore provided®
for the case where the estate cannot conveniently be divided,
they, or some one in their behalf, paying, or securing to be
paid, to the other parties interested, their respective parts of
the value thereof, in the manner prescribed as aforesaid.”
Fewer purparts — § 7, act April 7, 1807.
The seventh section of the act of April 7, 1807,** directs
that: “ Where the estate of an intestate is divided into a fewer
number of parts than there are children or representatives,
and any one 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 an appraisement of the whole, in and by an act passed
April 2, 1804, entitled “A further supplement to the
act, entitled ‘An act directing the descent of intestate’s real
estate and distribution of their personal estates, and for other
purposes therein mentioned,’ and any such sale or sales here-
tofore made by the decree of any Orphans’ Court is and are
hereby ratified and confirmed.”
28 Wistar’s Appeal, 105 Pa. 390; 30 Giving precedence to males, and
Massacer’s Estate, 4 Kulp, 13. to seniority.
22 P. & L. 3370. 312 P. & L. 3373.
96 Partition in Orpuans’ Court.
Fewer purparts than heirs.
The thirty-ninth section, just quoted, recognizes the permis-
sibleness of a division of the decedent’s land into two or more
parts fewer than the persons entitled to it. This kind of di-
vision is not infrequent, as in the following examples. Eleven
collateral heirs, and eight purparts;** widow and four chil-
dren, three purparts;** widow and two children, two equal
purparts;** eleven children, two purparts;® eight children, four
purparts;** seven heirs, four purparts;®” nine children, two
purparts;** widow and ten children, four purparts;* widow and
six children, three purparts;*® twelve claimants, four pur-
parts;*! six children, two purparts.** Indeed, when it would
be convenient to divide into purparts, it would be error to
refuse to divide at all, because the practicable division would
not produce as many purparts as heirs.*
Necessity of appraisement.
The thirty-ninth section of the act of March 29, 1832, ex-
plicitly requires that when the division is not into as many
shares as there are heirs, the inquest “shall make a just ap-
praisement of the respective purparts,” and that they shall be
allotted to the heirs that make choice of them, or otherwise
disposed of, as is the land when it is not susceptible of any
division at all. If, then, there are a widow and two children,
and the inquest divides the land into two purparts, of equal
value, it cannot refrain from expressly appraising these pur-
parts, nor can it allot them to the heirs, respectively, charged
with money, the interest of which is to be paid to the widow.
The heirs have a right to choose whether to take the shares or
not, with the burden on them. With the division and the
appraisement, and the return thereof, the power of the in-
quest ends.**
32 Barkley v. Adams, 158 Pa. 396;
Barkley’s Appeal, 2 Mona. 274.
33 Duey v. Clemens, 1 Pa. 118.
34 Benfield’s Estate, 7 W. N. C. 575.
35 Bartholomew’s Appeal, 71 Pa.
291.
36 Milligan’s Appeal, 82 Pa. 389.
87 Robisson y. Miller, 158 Pa. 177;
Ebbs v. Commonwealth, 11 Pa. 374.
38 Shelly v. Shelly, 8 W. & 8. 153.
39 Kline v. Bowman, 19 Pa. 24.
40 Deck v. Gluck, 47 Pa. 403.
41 Hersha v. Brenneman, 6 8. & R.
42 Fogelsonger v. Somerville, 6 S.
& R. 267.
43 Rex v. Rex, 3 8. & R. 533. The
ground was near Philadelphia, and
on it were two houses which had
been rented by the decedent and the
heirs and used as separate houses and
curtilages. The court set aside the
inquisition which returned all as one
piece, because there were seven
children, and a division into more
than two was not practicable.
44 Benfield’s Estate, 7 W. N. C. 575.
In Mason’s Appeal, 41 Pa. 74, there
Division or THE Lanp. 97
As many purparts as heirs, but unequal in value.
It may be possible and desirable to divide the land into
parts which shall be exactly as numerous as the heirs, but of
unequal value. In such a case, it would be necessary for the
inquest to appraise the purparts and return the appraisement
to court. But, could the inquest do more? Could it allot
the purparts, as it can and should, when the purparts are of
value proportional to the interests of the heirs? This ques-
tion was presented in Sampson’s Appeal.*® The decedent left
a widow, who died shortly after his own death, and seven chil-
dren. Three years afterwards, a partition was begun. The
inquest divided the land into seven purparts, of various areas,
and of the following values: No. 1, $5,133; No. 2, $5,133;
No. 3, $4,918; No. 4, $4,883; No. 5, $4,126; No. 6, $5,011, and
No. 7, $5,011, and made return to the court. The parties then
appeared in court, and the children elected in the order of sex
and seniority, until the first, second, fifth, sixth and seventh of
the purparts were taken. None were willing to take the third
and fourth. The court ordered the purparts taken, to the
several accepting heirs, refused to order the sale of the third
and fourth, conceiving that it had no power to make such an
order, and left the third and fourth purparts undisposed of.
The Supreme Court was of the opinion that the Orphans’ Court
ought to have completed the partition by allotting each of the
untaken purparts to one of the nonaccepting heirs, finding
authority to do so in the thirty-eighth section of the act of
March 29, 1832.*° This case tacitly concedes that the heirs
could elect to take in the order of preference established when
no division at all has been made,*’ and that only the rejected
parts would be allotted to the nonaccepting heirs.
The act of April 15, 1845.
The decision in Sampson’s Appeal, says Bell, J., in 1849,
“was based upon a somewhat strict construction of the act, and
were fewer purparts than heirs. The owelty for another of the heirs. Cf.
heir refusing to accept at the ap- Davis v. Dickson, 92 Pa. 365.
praisement, the land could be sold. 454 W.& S. 86.
In White v. Williams, 3 Phila. 460; 462 P. & L. 3369.
35 Pa. 514, there were a widow and 47 In Hoffer v. Wightman, 5 W. 205,
six children. The land was divided there were two heirs, and two pur-
into six purparts of unequal values, parts of unequal value. Both were
and these were allotted by the accepted by the heirs. In Bellas v.
inquest to each of the children, Evans, 3 P. & W. 479, there were
the widow’s third being distributed seven children and seven unequal
equally upon them, and one of them purparts. They were apparently all
at least being also charged with accepted.
98 Partition In Orrnans’ Court.
was undoubtedly in contradiction of what was the general un-
derstanding and practice throughout the State.“* Being found
to operate inconveniently,* it produced the act of 15th of April,
1845, by which the Orphans’ Courts are, in all cases, author-
ized to direct a sale of such portions of the real estate of a
decedent as the parties in interest refused to accept at the
valuation thereof. This was but declaratory of the original
act, as its meaning was accepted and practiced upon in many
sections of the commonwealth.” The act reads as follows:
“When, upon any proceedings in an Orphans’ Court, an ap-
praisement or partition of real estate is made by an inquest
of seven or more persons appointed by the court, the said court
shall, upon the refusal of any of the heirs or parties interested,
to accept any part of the same at the valuation thereof, or if,
after due notice, they shall neglect to appear and accept the
same, make a decree authorizing and requiring the executor or
administrator, or other person, as the case may be, to expose
such parts of the real estate not accepted as aforesaid, to be
sold, agreeably to the provisions of the act of Assembly, passed
the 29th of March, 1832.”°° When, then, there are as many
purparts as heirs or persons entitled, but not of proportional
value, so that owelty will be payable on some of them, in favor
of others, the heirs cannot be compelled to accept any of them.
All refusing or neglecting to accept, they must be sold.®*
More purparts than persons entitled.
It may be convenient to divide the land into more purparts
than there are heirs or persons entitled. “Sometimes,” said
Bell, J., in 1849," “ convenience and interest dictate its valua-
tion as a whole; sometimes its division into a fewer number
of shares than there are owners, and frequently it is carved
into small lots,°® with a view to advantageous sale, the process
of partition being regarded rather as the means than the end.
To this practice my experience suggests no objection. It is
48 Darrah’s Appeal, 10 Pa. 210. the heirs. The heirs not having come
Cf. Davis’ Estate, 1 Luz. L. Reg. 405.
49In Davis v. Dickson, 92 Pa. 365,
in 1835 land was subdivided between
the widow and eight children in un-
equal purparts, charged with owelty,
and allotted by the inquest. In 1879
the court held that the inquest had
no power to do more than subdivide
and appraise; that the allotment was
for the court, on the acceptance of
into court and accepted, the confir-
mation by the Orphans’ Court of the
partition reported by the inquest was
a nullity.
501 Br. Purd. 611.
51 Cf. Mason’s Appeal, 41 Pa. 74.
52 Darrah’s Appeal, 10 Pa. 210.
53 In Davis’ Estate, 1 Luz. L. Reg.
405, a division into between fifty-five
and sixty pieces was approved.
s Division or THE Lanp. 99
highly convenient in effecting a distribution of real estate, and,
indeed, often the only mode of preventing the older from
taking undue advantage of the younger heirs.” Such divis-
ions into purparts, exceeding in number the heirs, are not very
rare. Examples are the following: Two tenants in common,
four purparts;™* six heirs, thirteen purparts;” two heirs, three
purparts.”°
Horizontal or perpendicular division.
If the decedent owned only the coal or other mineral, and
not the surface, or the surface and not the coal or other min-
eral below it, or if he, owning both, had severed them in his
lifetime, the inquest could, doubtless, return the coal or other
mineral as one purpart, and the surface as another. Whether
the inquest could, itself, divide the coal from the surface,
making each a purpart, seems uncertain. In Christy’s Ap-
peal,’ Trunkey, J., remarked: ‘“ Whether the inquest could
lawfully divide the coal and surface of a tract and appraise
and return each as a purpart is a question not raised in the
record. The learned judge of the Orphans’ Court remarked
that he knew ‘of no precedent in partition which separates
the surface from the mineral right.’” As the court has no
right to determine whether a tract of land shall be divided
into purparts, but that is the business of the inquest, it has
no right to order the inquest to appraise the coal and the
surface as two purparts.
54 McMasters v. Chalfant, 1 Pa. 642. This was partition in the Com-
324. mon Pleas.
55 Darrah’s Appeal, 10 Pa. 210. It 57110 Pa. 538. In Stark’s Estate,
was error for the Orphans’ Court to 9 Kulp, 525, Darte, P. J., knew of
set aside the inquisition because the no authority for the division by an
number of purparts exceeded that of inquest of a tract into its coal and
the heirs. its surface.
36 Whitman v. O’Connor, 145 Pa.
100 Partition in OrpHans’ Court.
CHAPTER XII.
RULE TO ACCEPT AT APPRAISEMENT.
Rule to accept.
After the confirmation of the inquisition and of the ap-
praisement, the next step is to dispose of the land thus ap-
praised. This is done, by the acceptance of it by some
of the parties interested, either at the appraisement, or at
some higher sum bid for it, or by a sale. In order to compel
the acceptance, or, in lieu of it, a sale of the land, the act of
March 29, 1832, provided for two rules: One, upon all the
heirs to come into court and accept or reject; and, another,
after the heirs, under the former, had failed to accept, to show
cause why the land thus not accepted should not be sold. The
fortieth section of the act of March 29, 1832,* is as follows:
“Tn all cases of appraisement or partition mentioned in the
preceding section, the Orphans’ Court shall, on application,
grant a rule on all persons interested, to come into court at a
certain day by them to be fixed, to accept or refuse the estate,
or a share or portion thereof, as the case may be, and in case
the party entitled to a choice does not come into court in per-
son, or by guardian or attorney duly constituted, or in case
he shall refuse the same, a record shall be made thereof, and
the court may and shall direct the same to be offered to the
next in succession, according to the rules hereinbefore pro-
vided.’
Section 42, act March 29, 1832.
The forty-second section of the act of 1832° provided for a
second rule, viz., to show cause why the land not accepted
should not be sold, in these words: “ Upon an appraisement or
valuation of real estate, made as is hereinbefore provided,
should all the heirs neglect, after due notice, or refuse, to
take the same at the valuation, the court shall, on the applica-
tion of any one of the heirs, grant a rule upon the other heirs
and others interested, to show cause why the estate so appraised
12 P. & L. 3370. After granting the valuation. Rasley’s Estate, 13
an order to sell, the court may re- L. Bar, 160.
voke it, and extend the time for the 2That is according to sex and
heirs to accept or refuse the land at seniority.
32 P. & L. 3373.
Rote tro Accerr at APPRAISEMENT. 101
should not be sold, which rule shall be returnable at the next
regular session of the court, or at such subsequent period as
the court, having respect to the circumstances of the case, may
direct, and notice of such rule shall be given in the manner
provided in this act for other notices to heirs; on the return
of such rule, the court may, on due proof of notice to all per-
sons interested, make a decree authorizing and requiring the
executor or administrator, as the case may be, to expose such
real estate to public sale, at such time and place, and on such
terms, as the court may decree.”
Section 2, act April 25, 1850.
The second section of the act of April 25, 1850,* provides
for the fusion into one, of the rule to accept and of the rule
to show cause against a sale, in these words: “In all cases of
the partition or valuation of real estate in any of the Orphans’
Courts of this commonwealth, it shall be lawful for the said
courts, upon the application of the widow or any of the heirs
of the decedent, instead of the separate rules heretofore issued
in such cases, to grant a rule upon the parties interested to
appear, and accept or refuse the said real estate at the valua-
tion; or show cause why the said real estate, or any part thereof,
should not be sold, in case they, or any of them, should neglect
or refuse to take and accept the same as aforesaid.”
When rule is granted.
The rule to accept or show cause against sale is issued upon
“the application of the widow, or any of the heirs of the de-
-eedent.” It need not be of the petitioner for the partition.®
This application is in writing, and is known as a petition, and,
as all petitions, is supported by an affidavit of the truth of its
averments. It states the fact of the presentation of a peti-
tion for an inquest, the issue of the writ, the holding of the
inquisition, the return thereof, showing the division or not
of the land, and the appraisement «nd the confirmation of the
return. It concludes with a prayer that the court grant a rule
on the heirs and other interested parties, to appear on a cer-
tain day to be fixed by the court, to accept or refuse the real
estate at the valuation, or make bids on the same, or show
cause why the same shall not be sold on their neglect or refusal
to accept the same. The application for the rule may follow
42 P. & L. 3374. original petition was by all the heirs.
5 Mason’s Appeal, 41 Pa. 74. The One of them asked for the rule.
102 Partition iv Orpuans’ Court.
the confirmation of the inquisition immediately,° or a consid-
erable time may be permitted to elapse. In one case,’ five
years elapsed before the rule was asked for.
The day selected.
By the fortieth section of the act of March 29, 1832, the time
for the appearance of the parties to accept or refuse the land
was termed “a certain day by them [the court] to be fixed.”
The forty-second section directs that the second rule, viz., to
show cause against a sale, “shall be returnable at the next
regular session of the court, or at such subsequent period as
the court, having respect to the circumstances of the case, may
direct.” An indorsement on the writ of inquest, made by the
court, “ Conf’d nisi, and a rule is granted on the heirs and
devisees to accept or refuse to accept the premises according to
law,” is not conclusive that no definite day was fixed. When
the rule, as issued, requires the heirs “ to come into court on
the fourth Monday of January next, and accept or refuse,”
etc., the law is complied with.® If the rule should not be
served before the arrival of the time mentioned in it for ap-
pearance and acceptance or refusal, the time may be extended.®
The service of the rule.
The rule must be served on all the parties in interest. The
fifty-second section of the act of March 29, 1832," thus pro-
vides for the service of rules: ‘In all cases in which heirs,
legatees or distributees are interested, and in consequence of
such interest, notice shall be required to be given to them, or
any of them, of any proceedings in the Orphans’ Court, such
notice shall in all cases be given in the manner following,
except in the case of the accounts of executors or administra-
tors, and other cases specially provided for, viz.: To all per-
6Sankey’s Appeal, 55 Pa. 491.
7Dull’s Appeal, 108 Pa. 604.
8Sankey’s Appeal, 55 Pa. 491.
Says Agnew, J.: “Had the clerk
omitted to carry out the order fully,
by fixing a day of appearance, there
might be some ground of complaint.
The note of the judge is but a min-
ute for the information of the clerk,
who afterwards makes up the record
in full. It is a common practice in
many districts for the judge who has
the papers before him for inspection
to minute the orders upon them.
The clerk then makes up his entry
in the docket at full length.” In
Vensel’s Appeal, 77 Pa. 71, the par-
ties were warned to appear on the
first Monday in February, 1853.
9Unangst v. Kraemer, 8 W. & S.
391. The rule was continued in
Pyles’ Appeal, 1 Penny. 71.
102 P. & L. 3336. This section
regulates service of rules in parti-
tion; Sankey’s Appeal, 55 Pa. 491;
Kraig v. Keller, 8 Super. 78.
Roz to Accept at APPRAISEMENT. 103
sons resident within the county in which the court has jurisdic-
tion, notice shall be given personally, or by writing left at their
place of abode; to all persons resident without the county, per-
sonal notice as aforesaid shall be given, if in the opinion of
the court such notice be reasonably practicable; if otherwise,
by publication in such one or more newspapers as, in the
opinion of the court, will be most likely to meet the eye of
those entitled to notice.” If the court orders service on persons
resident beyond the county, by publication in two newspapers,
for six successive weeks, a copy thereof to be sent by mail to
the post-office address of each of them, and in fact, publication
is made and returned in but one newspaper for six successive
weeks, the court, as it might have originally required publica-
tion in but one newspaper, may ratify the service, by proceed-
ing to allot the lands, on the return day of the rule. The selec-
tion of the newspapers is with the court. It may select papers
published in the county in which it sits, rather than those pub-
lished nearer the place of residence of the parties to be noti-
fied. When notice is by publication, it is not necessary that
the heirs be named in the publication, otherwise than as parties
interested in the estate, if they have been named in the peti-
tion and writ, and have been duly served with the notice of
the holding of the inquisition. If personal notice is given, the
names of the other heirs need not be mentioned in the notice
to any one of them. It is enough that he is notified.” If an heir
grants his interest in the land after the return of the inquisi-
tion, but before the rule to accept or refuse, or (when there
were two rules, successively issued), between the issue of the
rule to accept or refuse, and the issue of that to show cause
against a sale, it is enough to give notice to the heir, whether
the grantee’s deed be on record or not. The sale will not be
invalid, even on appeal probably, as to the grantee for want of
notice to him. It will certainly not be liable to collateral
attack, in an ejectment by the grantee against the purchaser
at the sale, after the conclusion of the partition proceedings.¥
11 Sankey’s Appeal, 55 Pa. 491;
Reid v. Clendenning, 193 Pa. 406.
12 Reid v. Clendenning, 193 Pa.
406. But in this case the party col-
laterally attacking the partition was
represented by a trustee who acted
also as attorney for other devisees,
and, as such attorney, instituted and
conducted the partition. Possibly,
as he had actual knowledge, as at-
torney, of what he was doing, this
knowledge would be imputed to him
as trustee, and service of the rule to
accept or refuse would be dispensed
with. A party is not bound by the
acts of an attorney who represents
him in other but not in partition
proceedings. Van Emon’s Estate, 39
Pitts. L. J. 423.
13 Welty v. Ruffner, 9 Pa. 224.
He must look to the purchase money.
104 Parrition In OrpHans’ Court.
Says Gibson, C. J.: “‘ The vendee of a child’s share takes an
interest in an estate which, he knows, will be parted in a short
time; and if he does not choose to rely on his own vigilance, he
must stipulate for a communication of the notice necessary to
be given to his vendor; and should he omit to do so, still lis
pendens is as near to actual notice as the registry of a deed;
and, perhaps, there never was a case in which the representative
of a child’s share was unapprised by it of a proceeding like the
present.” A service of the rule to accept or refuse, at the
valuation, need not be made on the widow, because she has no
power either to accept or to bid, and, therefore, has no interest
in the process of accepting or bidding; but, as she has a “ direct
interest ” in the sale, she is entitled to be a party to the rule to
show cause against a sale.* So, if an heir dies, leaving a
widow, the heirs may waive the issue of the rule, and the
allotment of the land at the appraisement will be valid, as
respects this widow, although she did not unite in the waiver.*
Evidence of service of the rule.
When the service is by publication, proof of the publication
will, of course, be proof of the service. When personal service
is made by the sheriff, he makes a return thereof, which will
be the evidence of the service. The party himself, however,
may serve the rule,’ or he may serve it on some of the parties,
and the sheriff on others. From the sheriff’s return, therefore,
showing service on three named persons, it is not legitimate
to infer, on appeal, that there was no service upon the rest of
the heirs, if the decree of the court expressly states that due
proof had been made of the service of the rule on all persons
interested. The Supreme Court will accept the recital of the
court below of such proof of
record elsewhere affirmatively
14 Vensel’s Appeal, 77 Pa. 71.
15 Cf. Danhouse’s Estate, 130 Pa.
256.
16 The fifty-seventh section of the
act of March 29, 1832, 2 P. & L.
3340, provides that the “citation
may be served by the party obtaining
the same or by any authorized agent,
or if required by the party, it shall
be served by the sheriff or coroner,
as the case may require, of the proper
county.” This applies to rules in
partition. Horam’s Estate, 59 Pa.
152; Vensel’s Appeal, 77 Pa. 71.
service, as correct, unless the
shows its incorrectness.!7 In
The petitioner made proof of service
of the rule in Unangst v. Kraemer,
8 W. & 8. 391.
17 Horam’s Estate, 59 Pa. 152. In
Unangst v. Kraemer, 8 W. & S. 391,
in an action for the principal of the
widow’s dower the defendant alleged
that the sale in partition was in-
valid because the rule on the heirs
to show cause why the land should
not be sold, had not been served for
twenty days. Rogers, J., dismisses
the allegation by saying that the
court had jurisdiction and its decree
Rue to Acogrrr at APPRAISEMENT. 105
Vensel’s Appeal,’® the record stated, with regard to the inquisi-
tion: “ December 22d, 1832, approved, and rule on the heirs to
appear at the next term and accept, or show cause why the
same should not be sold.” The record contained, twenty years
afterwards, only the copy of a rule, directed to the “lineal
descendants of Jacob Vensel, deceased, and to all other per-
sons interested,” which cited them to appear at the next
Orphans’ Court “ to aecept or refuse to take the real estate of
Jacob Vensel, deceased, ete., at the appraised value,” ete. The
record contained, also, the sheriff’s return, without affidavit of
service, however, that he had served this rule on all the
children and the guardian of those who were minors, “ per-
sonally and by copy.” This rule was not served on the widow.
The issue and service of a rule to show cause against the sale
of the premises were evidenced in the record, only by the state-
ment in the record of the order of court that a rule issue, and
by the order of sale, which recited the grant of a rule by the
court, on all the heirs and legal representatives of the deceased
to accept or to show cause against a sale, and by the further
statement, “ At which time, due proof being made of the ser-
vice of said rule, according to the act of Assembly, as appears
by the return of the sheriff, and none of the heirs appearing
to take the said land, ete., at said valuation, it was considered
by the court that they had relinquished their respective rights
to take the same, and, therefore, at the instance of Jane Fink,
one of the heirs,” etc., the court ordered Hamm to sell. The
question raised twenty years after the partition sale, on an
attempt by the widow’s representatives to collect one-third of
the rents of the premises, on the assumption that the partition
had not converted her right into a right to money only, was
whether the sale was valid as to the widow. The Supreme
Court says, that the presumption is that she was named in the
rule to show cause against a sale, which was directed to “ legal
representatives,” and the recital in the order of sale, that due
proof had been made of the service of the rule, as appears by
the return of the sheriff, renders the inference legitimate, in
order to support the partition against collateral attack, that
service of the rule was made on the widow.” In short, the
cannot be controverted in a collateral 19 Says Agnew, C. J.: “The re-
suit. Besides, the heirs were es- cital of service on the heirs and legal
topped from denying the defendant’s representatives is conclusive of the
title, because they had already re- service on the widow, as a legal
ceived some of the purchase money representative, this being real estate,
and were then suing for the rest. and the term ‘legal representatives ’
1877 Pa. 71. having, therefore, no application to
106 Partition Iv Oxpuans’ Court.
actual issue of a rule to show cause against a sale was inferred
from the minute in the record, and the recital in the order to
sell, that the court ordered such a rule to issue, directed to
heirs and persons interested, and the service of this rule on the
widow was inferred from the recital in the order of sale, that
“due proof ” had been made of the service of said rule by the
return of the sheriff, although the rule found in the records,
with the sheriff’s return, was only to accept or refuse.
Waiver of the rule.
The parties entitled to a rule to accept, or show cause against
a sale, may waive the issue of it, by a writing filed,” or other-
wise. So, being in court without rule, the parties may accept
or refuse, and the acceptance or refusal will be as effectual as
if it had been in consequence of a rule to do so.™ If, e. g.,
when the return of the inquest or commissioners is made to the
court, all the heirs and persons interested are present to accept
or bid, the issue of a rule is unnecessary. If some only are
present, ¢. g., nine out of eleven, a rule should issue to bring
all in on a day certain. It is irregular to allow those present,
in the order of sex or seniority, to make choice, and then grant
a rule on the absent. If, however, this is done, the land should
be allotted to him whose first bid is the highest, whether he be
of those who appeared without the rule, or of those who came
in, in obedience to the rule. One of the former, e. g., should
not be allowed to increase his bid, on discovering that one of
the latter had bid more.”
Day for accepting.
Although the rule names the first day of the term, as that
for the appearance of the heirs, in order to accept or refuse,
or show cause against a sale, the parties are bound to attend
before the court, as other suitors do, until called. If the
the personal representatives.” The cause the papers are not all on file
presumption after twenty years must
prevail, that there was a rule to
show cause against a sale, the court
ordering the issue of one, and the
order of sale reciting the issue of
one, although no such rule or copy
thereof could be found among the
records; and also that the service of
this rule was made on the widow.
“After twenty years it would be a
harsh rule that would deprive an
innocent purchaser of his estate be-
in the Orphans’ Court.”
20 Danhouse’s Estate, 130 Pa. 256.
The land being accepted at the ap-
praisement the widow of a deceased
heir was not entitled to service of
: rule. Cf. Vensel’s Appeal, 77 Pa.
1.
21 Dewart v. Purdy, 29 Pa. 113;
Bartholomew’s Appeal, 71 Pa. 291.
22 Bartholomew’s Appeal, 71 Pa.
291.
Roe ro Accept at APPRAISEMENT. 107
business cannot be taken up on Monday, it must be postponed
from day to day, until the court is able to attend to it. The
decree of the premises to the heirs present on Thursday, who
accept, is, therefore, valid, although some of the heirs were not
then present. If the heirs do not intend to make a partition
among themselves of a part of the decedent’s land, until the
death of the widow to whom they have made a deed for it for
her lifetime, and, at the return day of the rule, the other four
parts, returned with appraisements by the inquest, are taken by
four of the sons, the part conveyed to the widow being re-
turned as a fifth purpart, seventeen years afterwards, the widow
dying, the husband of an only daughter will not be allowed to
take this purpart at the valuation. Says Burnside, J.: “ The
valuation of this part of the estate would seem not to have been
in the contemplation of the parties; nor had the court, on the
proceeding before them, jurisdiction over it. On the death of
Mrs. Ernest, it reverted to the heirs of the deceased, and is now
open to partition, valuation and sale) * * * The valua-
tion by the persons selected by the heirs eighteen years ago, of
the lot in question, was not authorized by the proceeding; a life
estate was outstanding, for which they had received an equiv-
alent. * * * The heirs had parted with their immediate
right for an uncertain period of time; and this was not brought
into the view of the court, nor stated in the petition.”
Alias rule.
If the court at which the parties are required by the rule to
be present, in order to accept or refuse the land, omits to call
them, on a later day an alias rule may be asked for by petition,
and obtained, made returnable on a day certain.” So, if for
any cause the allotment made to an heir is set aside, e. g., for
his noncompliance with the order to give recognizance for the
owelty, an alias rule may issue to the heirs to come in and
accept or refuse the land.*
Right to accept modified.
The heirs may agree, in writing, that a certain purpart shall
be taken by one of them at the appraisement,” or at a certain
23 Sankey’s Appeal, 55 Pa. 491. December 21, 1881, at 10 o’clock,
24 Keisel’s Appeal, 7 Pa. 462. A. M.
25 Reid v. Clendenning, 193 Pa. 406. 26 Gregg’s Appeal, 20 Pa. 148.
The alias rule was made returnable 27 Robisson y. Miller, 158 Pa. 177.
108 Partition In Orpuans’ Court.
price, less * or greater than the appraisement. Such an agree-
ment would justify the court’s allotting the purpart in accord-
ance with it. As soon as the award is made by the
court, in accordance with the agreement, which contemplates
immediate possession and enjoyment of the purpart by the
allottee, he acquires an equitable title, which will be bound by
the lien of a judgment acquired against him, although three
years and a half elapse after the agreement and the allotment,
before the parties adjust the owelty, and ascertain how much
the allottee will have to secure by recognizance.” The heirs
entitled to a preferential choice may waive it in favor of
others; e€. g., sons may waive in favor of daughters,” and those
who neglect to appear on the day mentioned in the rule will
be treated, practically, as refusing the land, and the right to
take passes to those of the deferred heirs, who are present on
the return day of the rule." So, the return day passing, and
none of the heirs accepting, they have no right, unless it seems
proper in the sound discretion of the court, to be permitted to
accept on a later day. The mere fact that a rule to accept or
refuse is followed by a rule to show cause against a sale, does
not entitle an heir who on the return of the former has failed to
accept, to accept on the return day of the latter. ‘“ But,’ asks
Rogers, J., “has the court any discretion over a matter of this
kind? It would be, perhaps, perilous to say they have not, as
cases may arise where it would be proper to exercise it; but the
court will be cautious in doing so, unless with the consent of all
the heirs, and never when the property, as here, has risen in
value. ‘After refusal to accept, the other heirs have rights of
which they ought not to be deprived, unless with their own
consent.” Jt is not error for the court to refuse to allow an
heir, who has neglected or refused to accept a purpart at the
proper time, to accept it on the day of sale, and but three hours
before it.**
Section 8, act April 7, 1807 — Rule to accept or refuse.
The eighth section of the act of April 7, 1807,°* enacts that
“Tn order to give the younger children or representatives of
an intestate an opportunity of accepting or refusing the estate
28 Mason’s Appeal, 41 Pa. 74. issue of an order to sell it was re-
29 Robisson v. Miller, 158 Pa. 177. scinded, by agreement of all the heirs,
30 Kean v. Ridgway, 16 8. & R. 60. and an heir was permitted to take
31 Wentz’s Appeal, 7 Pa. 151. the land at the valuation.
32 Wentz’s Appeal, 7 Pa. 151. In 33 Wistar’s Appeal, 13 Atlan. 550.
Goepp’s Appeal, 15 Pa. 421, after the 342 P. & L. 3368.
Roure tro Accept at APPRAISEMENT. 109
of the intestate, in case of an appraisement or partition into
fewer parts than there are children or representatives, the
Orphans’ Courts of the different counties of this common-
wealth are hereby authorized, upon application, to grant a
rule upon any of the children or representatives, to come into
court within a certain time, and to accept or refuse the same;
a copy whereof shall be served upon the party personally, ten
days before the return thereof, in case he, she or they reside
within the county, or, if they reside out of the county, a copy
of the rule shall be published in at least one newspaper, printed
in the proper county, or, if there be none therein, then in some
adjacent county, and in one daily newspaper of the city of
Philadelphia, for the space of one month before the return
thereof; and in case he, she or they do not come in, according
to the said rule, and accept or refuse, the court shall and may
direct the same to be offered to the next child or representative
in order.”
110 Partition 1n Orpuans’ Court.
CHAPTER XIII.
WHO MAY ACCEPT AT APPRAISEMENT.
When land is not divided.
The order of election to take land at the appraisement, is
prescribed by the thirty-seventh section of the act of March
29, 1832.1. ““ When any such estate cannot be divided among
the lineal descendants as aforesaid, or the widow and such
lineal descendants, without prejudice to or spoiling the whole,
the said seven or more persons, or the said inquest as the case
may be, shall make and return a just appraisement thereof to
the Orphans’ Court, and thereupon, but not otherwise, the said
court may order the same. I. To the eldest son, if he be
living; but if he be dead, to his children, if any, in the order
of their birth, and preferring males to females; and in like
manner to his other lineal descendants in the same order. II.
If the eldest son, or his lineal descendants, do not accept the
same, then to the second and other sons, or their lineal de-
scendants, successively, in the order of birth, in like manner
as is provided for the eldest son and his descendants. III. If
the second or other sons, or their descendants, do not accept
the same as aforesaid, then to the eldest daughter or her lineal
descendants, in like manner as is provided in the case of the
eldest son. IV. If the eldest daughter, or her lineal descend-
ants, do not accept the same, then to the second and other
daughters, or their lineal descendants successively, in like man-
ner as is provided for the second and other sons.”
When land is divided into purparts.
When the land has been divided but not into as many pur-
parts as there are parties entitled, and these purparts have been
appraised, the thirty-ninth section of the act of March 29,
1832,” provides that “thereupon the court may order the
shares successively to the parties entitled, to make choice there-
from, in the order and according to the rules hereinbefore*®
12 P. & L. 3366. When land is di- to take the land instead. But unless
rected by will to be sold, after the all agreed, they could not take the
death of the widow, to whom a life land at the valuation. Gallagher’s
estate is given, and she claims Estate, 2 Foster, 155.
against the will, and asks for parti- 22 P. & L. 3370.
tion, the persons who are entitled to 3In the thirty-seventh section.
the proceeds of sale may all elect
Wao May Acorpr ar APPRAISEMENT. 111
provided for the case where the estate cannot conveniently be
divided, they or some one in their behalf, paying or securing
to be paid to the other parties interested, their respective parts
of the value thereof in the manner prescribed as aforesaid.”
When there are collateral heirs and remaindermen.
The provisions already cited are for cases in which there are
lineal heirs. The forty-sixth section of the act of March 29,
1832,* provides for cases in which the heirs are collateral, thus:
“When the decedent leaves no lineal descendants, the like pro-
ceedings shall be had in all respects, on the application of the
persons in whom the estate shall vest in possession; Provided,
That if there be a life estate or life estates, with remainders
over, such remaindermen shall be made parties to the proceed-
ings in partition, and shall have the right to accept or refuse
the premises, at any valuation that may be made by seven men,
appointed as aforesaid, or by an inquest, in the same manner
as the lineal descendants of a decedent.”
In cases of testacy.
The act of May 9, 1889,° which extends the jurisdiction of
the Orphans’ Court in partition, to “all cases of testacy,”
directs that “ the proceedings in such cases shall be in the same
manner, and with like force and effect as is now provided by
law in the partition of the real estate of persons dying intes-
tate.”
The order of election.
The eldest son, as the act of March 29, 1832, provides, has the
first choice whether to accept the undivided land at the ap
praisement. If he has died in the lifetime,® or after the death
of the decedent,’ the right of choice passes to his oldest son,
and the other sons, or to the daughters, in the order of seniority.
If the oldest son has aliened his share, his right to elect passes
with the ownership to his grantee.* So, on the conveyance by
the eldest son of the oldest son.® A sheriff’s sale confers the
42 P. & L. 3379. Ragan’s Estate, 7 W. 438; Mason’s
52 P. & L. 3365. Appeal, 41 Pa. 74.
6In 1782, under the act of 1764; 7Merklein v. Trapnell, 34 Pa. 42;
Walton v. Willis, 1 Dall. 350. So, Sutton’s Appeal, 112 Pa. 598.
under the third section of the act of 8 Ragan’s Estate, 7 W. 438. The
1794. Hersha v. Brenneman, 6 S. & alienee may be the second son.
R. 2. So under the act of 1832. Gregg’s Appeal, 20 Pa. 148.
® Merklein v. Trapnell, 34 Pa. 42.
112 Partition in OrpHans’ Court.
same right on the purchaser, as a private sale would have con-
ferred.” The entire interest of the child must be vested in one
person, to authorize him to exercise the choice which the child
might have exercised. If, e. g., the son has conveyed his inter-
est in one of two or more purparts of the land, retaining his
interest in the rest, the right of election remains with him.™
If the interest in the rest has been likewise aliened to others, the
right of election passes to the next oldest brother, unless, in-
deed, all the alienees of the party unite in an election.” If the
interest has been assigned to two persons, they may probably
elect jointly. If they decline or fail to do this, the right
passes to the next oldest brother, or to the sisters. The
alienee of a second son, or of a daughter,” has the right to
accept of his grantor. A mortgagee of an heir is not regarded
as an alienee, and has no right to accept or refuse the land at
the valuation.”®
Nonacceptance.
The right of an heir to elect passes to one posterior in the
order of preference, when being notified, by rule, or other-
wise, to be present at the time and place, for the purpose of
election, he either fails to be there, or being there, fails to
accept when his turn arrives.” When the heirs are collateral,
brothers are preferred to sisters, and the oldest brother to the
younger brothers.**
Several purparts.
The oldest son has a right, when the land is not divided by
the inquest into any purparts, to elect. to take it at the appraise-
ment. But, suppose it is returned by the inquest, divided into
two or more purparts with respective valuations. Has the
oldest son the right to elect all these purparts? The thirty-
ninth section of the act of March 29, 1832, says that “ the
court may order the shares [or purparts] successively to the
10 Kline v. Grayson, 4 Binn. 225; 14 Wentz’s Appeal, 7 Pa. 151;
Stewart’s Appeal, 56 Pa. 241; Thomp-
son v. Stitt, 56 Pa. 156; Donaldson’s
Estate, 158 Pa. 292; Evans’ Appeal,
150 Pa. 528. If, subsequently to the
election to take, the sheriff’s sale is
set aside, the court will revoke the
decree awarding the land to the pur-
chaser.
11 Kline v. Grayson, 4 Binn. 225.
12 Td.
13 Sampson’s Appeal, 4 W. & 8. 86.
Rankin’s Appeal, 95 Pa. 358.
15 Cubbage v. Nesmith, 3 W. 314.
The alienee of four of the eleven
heirs accepted in Riddle’s Appeal,
37 Pa. 177.
16 Stewart v. Allecheny National
Bank, 101 Pa. 342; McCandless’ Ap-
peal, 10 W. N. C. 563; Long’s Appeal,
77 Pa. 151.
17 Wentz’s Appeal, 7 Pa. 151.
18 Sutton’s Appeal, 112 Pa. 598.
Wuo May Accept ar APPRAISEMENT. 113
parties entitled, to make choice therefrom, in the order” al-
ready described. This means, not that all the purparts are
singly and successively offered to the heirs, in the order of sex
and seniority, the result of which would be that the oldest son
could take all, but that the entire group is first presented to the
oldest son in order that he may select one from it.’® If he
selects one, the remainder of the group is presented to the next
oldest son, in order that he may select one. If he selects one,
the group, less the two already taken, will be presented to the
person entitled to the third choice, in order that he may select
one.” If, at the conclusion of these successive offers of the
group to each of the heirs, any of the purparts remains unac-
cepted, the right to select from them will revert to the oldest
son, and so on, until those are reached who have already de-
clined to accept any of them. In this way, or possibly by agree-
ment, it sometimes occurs that the same person accepts two or
more purparts.”
Several purparts.
The thirty-eighth section of the act of March 29, 1832,”
enacts that “ When equal partition, in value, cannot be made
by the seven men appointed as aforesaid, or by the said in-
quest, they shall make a just appraisement of the respective
purparts, or shares, in which they may divide the estate, and
thereupon the court may order the said purparts, or shares,
successively to the persons entitled to make choice therefrom,
in the order and according to the rules enacted in the preceding
section, where the estate cannot conveniently be divided, and
they shall award that one or more purparts or shares shall be
subject to the payment of such
19 The forty-fifth section of the act
of March 29, 1832, 2 P. & L. 3379;
1 Br. Purd. 607, enacts that after a
selection of any share, no heir “ shall
have the right of preference or elec-
tion to take * * * any other
share in the same county until all
the other heirs shall have neglected,
after due notice, or refused, take the
same at such valuation.”
20Such was the method appa-
rently, in Sutton’s Appeal, 112 Pa.
598. In Christy’s Appeal, 110 Pa.
538, an inquisition was condemned
because it left uncertain whether the
land was returned undivided or di-
vided into eight purparts. “By re-
8
sum or sums of money as shall
turning that the property cannot be
divided,’ said Trunkey, J., “some
foundation is laid, if the inquisition
be approved, for one of the children
to claim the whole under the provis-
ions of section 37 of the act, or to
demand, in case of bidding, that the
bids shall be for the whole and not
for a parcel.” This implies that if
the land were divided into purparts,
the same heir would not have the
right to be preferred in the election
to take all the purparts. Cf. Mason’s
Appeal, 41 Pa. 74.
21 Dech v. Gluck, 47 Pa. 403; San-
key’s Appeal, 55 Pa. 491.
222 P. & L. 3369; 1 Br. Purd. 607.
114 Partition In Orpuans’ Court.
be necessary to equalize the value of the said purparts, accord-
ing to the said appraisement thereof; which sum or sums of
money shall be paid or secured to be paid by the several per-
sons accepting such purparts, in the manner prescribed in the
foregoing section.” This section was understood by Kennedy,
J., in Sampson’s Appeal,” to apply to the case in which the
land was divided into as many purparts as heirs or representa-
tives of the decedent, but of unequal value.
Lands in different counties.
The ninth section of the act of April 7, 1807,% enacts that
“Where any person shall die intestate, after the passing of
this act, leaving lands or tenements in more than one county
in this commonwealth, if, after inquisition held, any of the
legal representatives of such intestate shall accept of the real
estate upon the valuation thereof, in any one county, such per-
son shall not have the right of preference or elect to take the
real estate or any part thereof in any other county, until all
the other heirs or legal representatives shall refuse to take the
same at such valuation.” The forty-fifth section of the act of
March 29, 1832,”> makes a similar provision in these words:
“Tn any case where one of the heirs of a decedent has elected
to take the real estate of such decedent in one county, or any
share thereof, if divided into shares, such heir shall not have
the right of preference or election to take the real estate of any
share thereof in any other county, or any other share in the
same county, until all the other heirs shall have neglected, after
due notice, or refused to take the same at such valuation.”
Right of widow.
Although the widow is a necessary party to a partition, either
as petitioner or respondent, when land in specie (one-third or
one-half in value of all, according as there are lineal or col-
lateral heirs) cannot be set off to her by metes and bounds, she
has a right only to the payment of an annual sum of money.
She has no right to accept the land at the appraisement. The
right to accept is conferred by the statutes, and they expressly
confine it to children or the descendants of children, or to col-
lateral heirs, or to devisees. “It was decided in Painter v.
Henderson, 7 Barr. 48,” says Paxson, J., in 1880,"* “ that the
234 W. & S. 86. 26 Rankin’s Appeal, 95 Pa. 358;
242 P. & L. 3369. Geibler’s Estate, 1 Leg. Gaz. 58;
232 P. & L. 3379. Hertz’s Estate, 2 L. Bar, 24 (Dec.
Wuo May Acorrr at ApPRAISEMENT. 115
widow, although entitled to have partition on her application,
was not a party to whom a purpart could be awarded. The
reason given was, that the act of Assembly did not make her
such a party, and the omission to do so was intentional. The
persons entitled to take are the heirs. Among the recognized
exceptions are, 1. The husband may accept in right of his wife
when she is an heir; Johnson v. Matson, 1 Barr. 171; Stoolfoos
v. Jenkins, 88. & R. 175; Keen v. Ridgway, 16 id. 60; Thomp-
son v. Stitt, 6 P. F. Smith, 156, and 2. The alienee of an heir,
Sampson’s Appeal, 4 W. & S. 86; Thompson v. Simpson, 3
Barr. 71; Painter v. Henderson, supra; Thompson v. Stitt,
supra.” Since Painter v. Henderson, the inability of the
widow to elect to accept land at the appraisement has been
several times recognized.” Of course, the widow may also
acquire the interest in fee of an heir, by inheritance or other-
wise, and in that way, obtain a right to accept the land at the
valuation.*
Right of life tenant.
The act of March 29, 1832, provides for the election by
children, or their representatives, of land at the valuation. It
makes no provision for life tenants, who, under the Intestate
Law, are other than children. The forty-sixth section provides
for the case in which there are collateral heirs, with the proviso
“ That if there be a life estate or life estates with remainders
over, such remaindermen * * * ghall have the right to
accept or refuse the premises at any valuation that may be
made * * * such remaindermen being bound by recog-
nizance or other sufficient security, according to the direction
of the court, for the payment of the annual interest to the
tenant or tenants for life.” By this section, as will be seen,
“the life tenant,” remarks Paxson, J., “is not permitted to
make choice asagainst even remaindermen,’”” who arecollateral
heirs of the decedent. Nor can he, as against the lineal heirs.
1870): Ifthe land is awarded to the peal, 77 Pa. 71; Geibler’s Estate, 1
widow at the appraisement, the de-
cree can be attacked only on appeal,
not collaterally, as in an action by
the widow against her vendee for
the purchase money. Painter v.
Henderson, 7 Pa. 48.
27 Gourley v. Kinley, 66 Pa. 270;
Danhouse’s Estate, 130 Pa. 256;
Davis v. Dickson, 92 Pa. 365; Steel’s
Appeal, 86 Pa. 222; Vensel’s Ap-
Pears. 445; 1 Leg. Gaz. 58; Hertz’s
Estate, 2 L. Bar, 24 (Dee., 1870).
28 Herr v. Herr, 5 Pa. 428; Dan-
house’s Estate, 130 Pa. 256. It was
assumed that the widow, on the
death of a son intestate without is-
sue, and without brothers or sisters,
became owner in fee of his share in
her husband’s lands.
29 Rankin’s Appeal, 95 Pa. 358.
116 Partition in Orpuans’ Court.
Hence, a devisee dying, leaving a husband and an only child,
who dies shortly afterwards, the husband, thus become a life
tenant, both by the curtesy and as the heir of his child, has no
right to accept at the valuation, or to bid a higher price for the
purpart.®*°
Guardian.
When the heir is a minor, having a guardian, this guardian
may accept the land or a purpart of it, in the name of and for
the ward.** If he is guardian of several, e. g., of two,®* or
four, he may accept a purpart or the whole land, when it is
not divided, for all of them jointly; and whether the land is
awarded to them,** or to him as guardian of them,” the land
becomes theirs. He may, also, accept a purpart for one of the
wards alone, and another for another ward.?7 When the
guardian accepts for the ward, and enters into the recognizance,
it will bind the purpart, in the hands of the ward,** and though
it binds the guardian, personally,** he would have a right to be
indemnified from the estate of the ward, if he had to pay.
When the value of the purpart is largely in excess of the share
of the ward in the estate, e. g., is $4,500, while the ward’s
share is but $2,169, and there are no funds of the ward from
which the owelty could be paid, it is not the duty of the guard-
ian to accept for the ward, and he may, as husband of another
heir, accept the purpart for her. ‘“ The guardian,” said Mereur,
J., “had no funds of the appellant with which he could pay
owelty. If he had elected to take a purpart for her, he would
have been obliged to advance, of his own money, a sum nearly
equal to the whole value of the appellant’s share. This, he
was certainly not required to do. Had he done so, he would
have incurred the risk of having the legality of his act ques-
30 Rankin’s Appeal, 95 Pa. 358;
Himelspark’s Estate, 8 D. R. 183;
Klingensmith’s Estate, 130 Pa. 516.
In McIntosh’s Estate, 4 Pa. C. C.
593, Hawkins is of opinion that
when the devisee for life is a child
he has a right to accept at the valu-
ation or to bid and bind the con-
tingent remainderman.
31Kean v. Ridgway, 16 8. & R.
60; Phila. & R. R. R. v. Common-
wealth, 2 Penny. 76; Commonwealth
v. Hantz, 2 P. & W. 333; Hawk v.
Geddis, 16 8. & R. 23; Gelbach’s
Appeal, 8 S. & R. 205. The court
refused on the ward’s arrival at ma-
jority to set aside the decree by
which a purpart had been awarded
to him.
32 Eberts v. Eberts, 55 Pa. 110.
33 Cowan’s Appeal, 74 Pa. 329.
34 Eberts v. Eberts, 55 Pa. 110;
Gelbach’s Appeal, 8 8. & R. 205.
35 Cowan’s Appeal, 74 Pa. 329.
36 Phila. & R. R. R. v. Common-
wealth, 2 Penny. 76.
37 Totten’s Appeal, 46 Pa. 301.
38 Phila. & R. R. R. v. Common-
wealth, 2 Penny. 76.
39 Gelbach’s Appeal, 8 S. & R. 205,
implies that the guardian would be
bound.
Wnro May Accrpr ar APPRAISEMENT. 117
tioned by his ward on her arriving at full age. He, therefore,
took no purpart for the appellant. He did, however, in right
of his wife, elect to take a purpart valued at over $4,500.
This he had a perfect right to do. The rights of his wife were
not to suffer from the fact that her husband was guardian of
the appellant.’*° The guardian being also an heir, he may
accept one purpart for himself, and another for the wards.
A purpart being awarded to him as an heir, will not be affected
with a trust for the wards, in the absence of gross unfairness
or fraud.*
Committee of lunatic.
The first section of the act of March 22, 1865," enacts that
“The committee of the estates of lunatics and habitual
drunkards, shall have the same power, in proceedings for the
partition, or partition and valuation of real estate, held by such
lunatics and habitual drunkards, which guardians have over the
real estate of their wards, by the existing laws of this common-
wealth.”
The husband of an heir.
Nothing in any of the acts of Assembly upon the subject of
partition, regulating the right to accept or refuse purparts, has
indicated that, when an heir is a married woman, her right to
accept or refuse should be exercised by her husband. But, the
decisions have been uniform, not only that the husband is thus
to exercise the wife’s power of choice, or rather, that the wife
is not, but the husband, instead, is to have this right of choice,
but also that when he exercises it, he exercises it for so much
of the land that he accepts, as is in excess in value of his wife’s
share in the whole real estate of the decedent, not for her
benefit, but for his own; that, of this excess, he, and not she,
becomes the owner in fee simple. If, e. g., the land is not
divided, but appraised at $10,000, and there are four heirs, so
that $7,500 must be paid as owelty by whoever accepts, the
husband of an heir may accept in her stead, and thus become
the owner in fee of three undivided fourths of the land.“ He
does not acquire his wife’s undivided one-fourth, but that re-
40 Milligan’s Appeal, 82 Pa. 389. 371; Stoolfoos v. Jenkins, 8 8S. & R.
This was an attempt to surcharge the 175; Kean v. Ridgway, 168. & R. 60;
guardian on the settlement of his Thompson v. Stitt, 56 Pa. 156; Hoffer
account. v. Wightman, 5 W. 205; McCullough
41 Cowan’s Appeal, 74 Pa. 329. v. Wallace, 8 8. & R. 181; Snevily
421 P. & L. 2821. v. Wagner, 8 Pa. 396; Cubbage v.
43 Johnson v. Matson, 1 P. & W. Nesmith, 3 W. 316; Rankin’s Ap-
118 Partition In Orpuans’ Court.
mains with her, so that the husband becomes by the partition a
tenant in common with her. If the decedent’s land is divided
into purparts, and one of these is accepted by the husband, her
original fraction in the purpart remains, he acquiring the
fractions of all the other heirs. Even when the wife’s share in
the other purparts was divested by the acceptance of them by
the other heirs, and the giving of recognizances to secure her
owelty, and the husband received this owelty, her own share in
the purpart taken by the husband was not increased to such
fraction of it, as represented the ratio of the value of her share
in the whole estate, to the value of the whole estate. Thus,if the
land was divided into two purparts, of the value, respectively,
of $7,000 and $8,000, and there were three heirs, and her hus-
band took the $8,000 purpart, she did not become the owner
therein of five thousand eight thousandths because her share of
the whole estate was $5,000, although the owelty on the other
purpart in part represented her undivided third therein, and
was collected by her husband.“# It had been held, how-
ever, in a case in which there were three heirs, and the land
was divided into three purparts, of which the one of least value
was accepted by the husband of the heir, that, as this purpart
did not exceed, and indeed was somewhat less in value, than the
third of the entire real estate of the decedent, to which she was
entitled, the whole of it belonged to her in fee, charged only
with the husband’s life estate.* This decision is explained by
Eldred, P. J.,*° as resting on the fact that the division was
into as many purparts as heirs, which, though of unequal values,
must, if not voluntarily accepted by the heirs, be allotted to
them by the court.*”
Wife’s original interest remains.
It may be said, generally, that, whether the whole land is
taken by the husband, or only one of several purparts, the
peal, 95 Pa. 358; Fogelsonger v.
Somerville, 6 8S. & R. 267; Blocher v.
Carmony, 1 8S. & R. 460; Allen
v. Getz, 2 P. & W. 310; Smith v.
Scudder, 11 8S. & R. 325; Bellas v.
Evans, 3 P. & W. 479. The reasons
for allowing a husband to accept
instead of the wife are referred to
in Eby’s Estate, 5 Pa. C. C. 434.
44 Snevily v. Wagner, 8 Pa. 396.
In Kean v. Ridgway, 16 8. & R. 60,
the concentration of the wife’s share
of the whole estate into the purpart
accepted by the husband was re-
pudiated.
45 Blocher v. Carmony, 1 S. & R.
460; Snavely v. Wagner, 3 Pa. 275.
In Hoffer v. Wightman, 5 W. 205,
similar facts existed, but how large
the share of the wife was is not
considered.
46 Snevily v. Wagner, 8 Pa. 396.
47 According to Sampson’s Appeal,
4 W. & 8. 86, which no longer rep-
resents the law.
Wuo May Acorpr ar APPRAISEMENT. 119
wife retains the original interest she had in the land or in that
purpart, and the husband acquires the rest. Thus, husband
takes one of two purparts. There are seven heirs. The wife
retains an undivided seventh, in fee, subject to the husband’s
life estate therein; and he acquires in fee the other six-sev-
enths.*8 There being two heirs, the whole land is awarded to
the husband of one of them. The wife retains her half; he
gains the other half.*? Six heirs, the land is taken by the
husband of one of them. The wife retains one-sixth; he ac-
quires five-sixths.°° Six children, one of several purparts
taken by the husband of an heir. The oldest son being en-
titled to two shares, the wife retained one-seventh, and the
husband gained the six-sevenths in fee." The husband does
not acquire the wife’s fractional interest in the land or the
purpart by giving a recognizance for her share of the valuation
money.”
Trust affecting husband for wife.
In the early cases, no effort seems to have been made by
married women, heirs, themselves to accept the land or pur-
parts at the valuation. In a few cases, the acceptance seems
to have been by husband and wife jointly.’ In some cases,
it seems, in recent times, to be held that the husband, though
accepting the land, holds it charged with a resulting trust for
the wife, if her share of the owelty from other portions of the
estate, is employed in paying for the shares of the heirs in the
land accepted. In Barkley’s Appeal,™ the petition for parti-
tion was in the name of “ Josephine Barkley, by her husband
W. F. Barkley.” The rule to accept or refuse at the valuation
having issued, W. F. Barkley appeared, and elected to take a
purpart, and he gave the recognizance. Subsequently, the
court decreed a reduction from the recognizance by the amount
due Josephine from the other heirs on account of the purparts
taken by them. Three years and six months subsequently,
Josephine petitioned the court for a review on the ground of
error in allowing the husband to take the land in his own right,
48 Johnson v. Matson, 1 P. & W. Appeal, 52 Pa. 449; Eckert v. Yous’
371. Admr., 2 R. 136; Holman’s Appeal,
49 Stoolfoos v. Jenkins, 8 8S. & R. 106 Pa. 502; Light v. Zeller, 144 Pa.
175. 582.
50 Fogelsonger v. Somerville, 6 S. 52 McMillan’s Appeal, 52 Pa. 434.
& R. 267. 53 Milligan’s Appeal, 82 Pa. 389.
51 Kean v. Ridgway, 16 8. & R. 60; 542 Mona. 274; Barkley v. Adams,
Harlan v. Langham, 69 Pa. 235. Of. 158 Pa. 396.
Evans v. Ross, 107 Pa. 231; Hay’s
120 Partition In Orrrrans’ Court.
and to pay for it, in part, with the owelty payable to her. The
court refused the review, because of the delay and changes in
the relations of the parties interested in the land. In affirm-
ing the decision below, the Supreme Court remark: “ Mrs.
Josephine Barkley, through the agency of her husband, was
the actor in this partition, and that the purpart was awarded
to him, instead of to her, matters little, seeing that her money
was used to pay the owelty. She was, in equity, the owner
of the land, and could have compelled a conveyance to her.
Under such circumstances, she cannot now be allowed to resist
the collection of the recognizance.”
Light v. Zeller.
A case of resulting trust in favor of the wife of the accept-
ing husband is found in Light v. Zeller.°* The land was di-
vided into several purparts, of which one was valued at
$8,021.24. This was adjudged to Reuben L. Light, in right
of his wife, and he was ordered to enter into a recognizance.
The recognizance furnished was signed by his wife, himself,
and two sureties. Twenty months afterwards, the heirs made
a settlement, and all the share of Mrs. Light in the recogni-
zances and personal estate was renounced by her, and deducted
from the recognizance of herself and husband. There still
remained due the other heirs on this recognizance $1,208.19,
which Reuben L. Light, himself, paid. Before the allotment
of the land in the partition, it had been agreed between Light
and his wife that she was to take the farm, and that her in-
terest in the other portion of the estate was to pay for it.
Under the instruction of the court, the jury found that 336}
of the land had been paid for by Mrs. Light, and that as to
this portion, her husband held the land charged with a result-
ing trust for her. This trust she could enforce against one
who, at a sheriff’s sale, had purchased the land as her husband’s,
with knowledge of her claim. In reply to the objection that
the actual use of the interest of Mrs. Light, in satisfaction of
the recognizance, did not take place until after the land had
vested in her husband, Sterrett, J., remarks: “ This conten-
tion, we think, ignores the legal effect of the partition and Mrs.
Light’s recognizance. The recognizance [i. €., her recogni-
zance| proprio vigore operated as an appropriation of her in-
terest in the entire valuation money, as far as it went, to the
appraised value of the purpart taken by her husband for her
55144 Pa. 582.
Wuo May Accrrt ar ArPRAISEMENT. 121
benefit. The fact that the actual calculation and adjustment
of owelty among the heirs was not made for several months
after the recognizance was given, could not affect the right of
the other heirs to insist on having the valuation money applied
as it was. The rights of the parties, respectively, were fixed
when the recognizances were given, and the partition com-
pleted. They were as absolutely fixed as if Mrs. Light had
then and there assigned on the record all her interest in the
valuation money of the several purparts, in payment pro tanto
of the valuation money of the purpart taken for her benefit.
As already stated, Mrs. Light was not in a position to require
any of the other heirs to pay her anything on account of her
interest in the appraised value of the purparts allotted to them.
Cross-claims or demands were created by the respective recog-
nizances against each of those to whom purparts were awarded.”
Married woman accepts.
Even comparatively recent cases have recognized the right
or power of a husband to accept instead of his wife, although
she is now entitled to nearly as full control of her estate as an
unmarried person.*® It can scarcely be doubted that she may
now accept for herself, giving the necessary recognizance,”
and that, if she wishes to take the land at the appraisement, he
cannot take it for himself.®
Acceptance voluntary.
When there is no division into as many purparts as heirs
and which are proportional in value to the interests of these
heirs, the court cannot compel an heir to receive a purpart at
the appraisement. But an express acceptance is not necessary.
It may be tacit under certain circumstances. Thus, there be-
ing three purparts, No. 3 was accepted by one heir, under an
agreement between all the heirs, at a price reduced from the
valuation; No. 2 was accepted by another at a bid in excess
of the valuation. The court awarded, at the same time, No.
56Evans v. Ross, 107 Pa. 231 thus became owner of the purpart,
(1875). although her husband gave her some
57 Light v. Zeller, 144 Pa. 582; of the money to pay on it.
Barkley’s Appeal, 2 Mona. 274; 58 Eby’s Estate, 5 Pa. C. C. 434.
Barkley v. Adams, 158 Pa. 396. In
Knauss’ Estate, 3 Pa. C. C. 584, a
married woman accepted a purpart
in 1872. In Harnish’s Estate, 5 Leg.
Opin. 141, a married heir could
accept, giving the recognizance. She
This result is attributed by Rowe,
P. J., to the act of April 11, 1848,
concerning married women. In
Powell’s Estate, 3 D. R. 508, the
opinion of Judge Rowe is approved
by Gunster, J.
122 Partition 1x Orpuans’ Court.
1 to the guardian of several minor heirs at the valuation. An
appeal by the guardian, he alleging that purpart No. 1 was
forced on his wards, was dismissed, Read, J., saying: “To
this decree there appears no such objection on the record as
that the heirs of the eldest son refused to accept allotment
No. 1, but, on the contrary, it would seem that they acquiesced
init. If they had intended to refuse, they should have refused
and asked for a sale. It is too late, under the facts of this
case, to raise this objection in a court of appeal.”
Interposition of lien creditor.
The lien creditor of one of the heirs cannot object to his
exercise of the right of choice, although he may suffer a detri-
ment by it. Thus, the decedent’s land in Montgomery and
Philadelphia counties undergoes partition. A. accepts the land
in Montgomery, charged with owelty of $9,500; B. accepts
the land in Philadelphia, charged with $10,775. The result
is to give creditors, who have judgments against A. in Mont-
gomery, an advantage over those who have judgments against
him in Philadelphia.
59 Mason’s Appeal, 41 Pa. 74. owelty of $9,500 against the $10,775
60 Machette’s Estate, 4 W. N. ©. owed by her, and pay only $1,275.
371. So, B. has a right to set off the
Bippine ABove VALUATION. 123
CHAPTER XIV.
BIDDING ABOVE VALUATION.
Why bidding permitted.
The method of allotting land at the appraisement made it
possible for an heir to secure land at a price below what the
other heirs thought fair and just. The only means of pre-
venting this was to except to the appraisement, on the return
of the inquisition, a means which experience has not shown
to be very efficacious, on account of the disinclination of the
courts to set aside appraisements except on the clearest proof.
To a degree, the tenth section of the act of April 22, 1856,?
remedies this evil. It allows an heir who thinks the appraise-
ment too low, and who is able to buy the purpart, to offer a
higher price for it, and thus compel any of the others to offer
a still higher, if he wishes to secure it. “In all cases,” says
this section, “ of partition of real estate, in any court wherein
a valuation shall have been made of the whole or parts thereof,
the same shall be allotted to such one or more of the parties in
interest, who shall, at the return of the rule to accept or refuse
to take at the valuation, offer in writing the highest price
therefor above the valuation returned, but if no higher offer
be made for such real estate, or any part thereof, it shall be
allotted or ordered to be sold as provided by law.”
Who may bid?
The allotment is to be “to such one or more of the parties
in interest ” as shall offer the highest price. The act of April
22, 1856, does not enlarge the class who can bid beyond the
class who could accept at the appraisement. All that could
accept, at the appraisement, can bid; none can bid that could
not accept. The widow of the decedent cannot,” nor a life
tenant. Thus, a husband who, as tenant by the curtesy, and
also as heir of his deceased minor son, had a life estate, was
denied the right,’ although Hawkins, P. J.,* reached the con-
clusion that, if the tenant for life, made such by devise, was a
12 P. & L. 3390; 1 Br. Purd. 608. 3 Rankin’s Appeal, 95 Pa. 358.
2Rankin’s Appeal, 95 Pa. 358; 4McIntosh’s Estate, 4 Pa. C. C.
Geibler’s Estate, 1 Pears. 445. Of. 593; Klingensmith’s Estate, 130 Pa.
Painter v. Henderson, 7 Pa. 48; 516.
Hertz’s Estate, 2 L. Bar. 24 (Dec.,
1870).
124 Partition in Orpuans’ Court.
child of the decedent, the right of choice of a purpart at a
valuation, and, therefore, the right to bid beyond the valua-
tion, was secured by the thirty-sixth and thirty-seventh sections
of the act of March 29, 1832. “There may,” he remarks,
“be individual cases of hardship arising out of the application
of this rule, as where the tenant for life bids an amount in
excess of that which the remainderman regards as the fair
value of the property; but, ordinarily, the interests of the
tenant for life and the dependent remainderman will be found
to harmonize. The only purpose of allowing bids is to furnish
a practical test of value, and it will rarely happen that any
one will abuse the privilege to his own disadvantage, whether
he be tenant for life or dependent remainderman.” The guard-
ian of a minor heir may bid.* The husband cannot now bid
in right of his wife, she desiring to bid herself, for herself.*
The bid of a married woman, if her right to bid is contestable,
will be held ratified by her husband, if he joins in the recog-
nizance.’ The alienee, e. g., the sheriff’s vendee of the interest
of an heir, gains his right to bid.®
Manner of bidding.
The bid contemplated by the act of April 22, 1856, is to be
made in writing. One object intended by this requirement is
to preserve the secrecy of the bids made by the heirs until
they are all put in. It is not designed that the bid of any
shall be known and that thus another shall be enabled to put
in a higher bid. “ The purpose of the act,” said Agnew, J.,
in 1869,° “ certainly was to enable the parties to correct un-
fairness or undervaluation, and make the premises command
the highest price. In this view, a second bid would be but
fair. But, on the other hand, overbidding leads to unfairness,
and incites parties to a series of feints in bidding, to enable
one to overreach another. Selfish or even malicious pertinacity
may force one who must have the property to pay more than
its worth, or greater wealth may, for unfair purposes, bid it
away from another whose circumstances require him to get it.
In addition to this, such an interpretation would -convert the
courtroom into an auction, where the property would rise by
5Dull’s Appeal, 108 Pa. 604, is an not void. No opinion upon its cor-
instance. rectness was expressed.
6Eby’s Estate, 5 Pa. C. C. 434, 7Clever’s Estate, 40 Pitts. L. J.
Rowe, P. J. In Snively’s Estate, 129 358.
Pa. 250, where the correctness of 8Donaldson’s Estate, 158 Pa. 292.
Judge Rowe’s decision was collater- ® Klohs v. Reifsnyder, 61 Pa. 240.
ally attacked, it was held, that it was
Bippine ABovE VALUATION. 125
small bids, until it had reached the highest price that interest
or pertinacity could force it up to. We are of opinion, there-
fore, that the true interpretation of the act of 1856 warrants
only a single offer in writing, and that the court can compel
all parties to hand their offers in together, or permit them to
seal them up, until the court shall order them all to be opened.”
In Sutton’s Appeal,” the court says: “ We think the practice
of allotting purparts in partition on oral bids, not only per-
nicious, but contrary to the statute. The offer to take must
be in writing.”
Successive bids.
‘What has been said pointedly indicates that successive bids
are to be avoided. After the parties have put in bids and the
highest is announced, it is improper to allow one of the un-
successful parties to increase his bid. In Klohs v. Reifsnyder,™
the oldest son offered, in writing, $2,100 above the valuation;
another offered $5,100 above the valuation. The oldest son
then offered $400 more. The court properly awarded the pur-
part to the bidder of the $5,100. In another case, the com-
missioners reported the land appraised at $60,000. One of
the co-owners offered a sealed bid for $65,000. The bid was
opened, and read aloud by the court, which allowed another
cotenant to make a written bid of $65,050, and allotted the
land to him. This was error. In Bartholomew’s Appeal,”
the commissioners reported that they had valued lot No. 1 at
$58 per acre, and lot No. 2 at $57 per acre. Some of the
heirs being present, and called in their order, the oldest, Aaron,
offered to take No. 1 at the valuation. Gideon offered $2 per
acre above the valuation, and Levina $4 per acre. Other heirs
were not present, and a rule was granted on the absent to ap-
pear and accept or refuse No. 1, and on all the heirs to accept
or refuse No. 2. The heirs then appeared, when John offered
for No. 1 $8 per acre above the valuation. Levina, who had
already offered $4, now offered $8.01 above the valuation.
The award to Levina was erroneous. It should have been
made to John. Thompson, ©. J., declares it irregular to have
10112 Pa. 598. But one who makes 12 Kyerman vy. Detwiller, 136 Pa.
oral bids and receives a purpart on 285. This was in the Common Pleas.
one of such bids, cannot subse- Cf. Whitman v. O’Connor, 145 Pa.
quently object that the court 642.
awarded other purparts to others on 1371 Pa. 291, in the Orphans’
oral bids. Court.
1161 Pa. 240. This was in the
Common Pleas,
126 Partition In OrpHans’ Court.
received any bids without having first, by rule, brought in all
the heirs to accept or refuse. Having done so, however, and
Levina having made a bid, she was not entitled, on hearing
the bid of John, to make a second bid for the purpose of ex-
ceeding his. “Mrs. Crock did not regard the real value in
her first bid, for she went beyond it $4.01 per acre in her
second. She introduced into the proceedings just what we con-
demned in the case cited, namely, alternate bidding. An
heir, wishing any certain appraised purpart, ought to make up
his or her mind, and offer what he or she is willing to give for
it above the appraisement, and not depend upon what others
may be willing to do.”
Preferred heir.
The heirs who are preferred on account of sex or seniority,
in accepting land at the valuation, have no preference of any
sort in bidding. The highest bidder acquires the land, though
the result is that an older son is pretermitted, in favor of a
younger son” or a daughter.” Nor has the oldest son a right,
when it is found that a younger son or a daughter has made
the highest bid, to take the land at this highest bid,’® or to
make a bid in excess of it.1* Whether the principle de minimis
non curat lew will ever be applied to bids is doubtful. They
may exceed the appraisement, or each other, by the most trifling
amount, and, nevertheless, entitle those who make them to
receive the land or the purpart, in preference to the heir who
is ready to accept at the appraisement, or the next highest
bidder.
14 Klohs v. Reifsnyder, 61 Pa. 240.
15 Yet John’s bid was made with
knowledge of the previous bid of
Levina. The bids in this case were,
apparently, oral.
16 Bartholomew’s Appeal, 71 Pa.
291; Mason’s Appeal, 41 Pa. 74.
17 Horam’s Estate, 59 Pa.
Osborne’s Appeal, 149 Pa. 412.
18 Horam’s Estate, 59 Pa. 152.
19In Sutton’s Appeal, 112 Pa. 598,
there were six purparts. The oldest
son offered to take No. 6 at the
valuation, $10,466.67. The second
son was then asked whether he
would give more. He orally offered
$12,000; another offered $16,966.67;
and a still younger son offered
$17,000. The oldest son was asked
to give more but declined, and the
152;
In Rankin’s Appeal,” a purpart, appraised at $11,742,
purpart was awarded to the bidder
of $17,000. Six weeks afterwards,
the oldest son petitioned the court to
adjudge No. 6 to him at the valua-
tion, on the ground that oral bids
should not have been received. The
petition was dismissed. The Supreme
Court held that he was estopped by
having raised no objection at the
time, and by having himself procured
a purpart by an oral bid in excess of
those made by other heirs.
2095 Pa. 358. Another purpart, of
the same valuation, was bid for by
two heirs, one offering $5 more,
and the other $5,000 more. It
was awarded to the latter, but, as
he was a mere life tenant, not en-
titled to bid, the award was reversed
by the Supreme Court.
Bippine ABovE VALUATION. 127
was awarded to an heir that bid but $1 more. In Sutton’s
Appeal,”' on one purpart there was an increase from $16,966.67
to $17,000; on another, from $3,000 to $3,001; on another,
from $2,500 to $2,501; on another, from $3,000 to $3,100;
on another, from $6,283.67 to $7,500. The appraisement was
$6,480, and the land was awarded on a bid of $6,500, in
Osborne’s Appeal.” Sometimes the bids very much exceed
the valuation. In Dutch’s Appeal,” one tract was appraised
at $12,000, and the bid was $16,000; another was appraised at
$13,000, and the bid was $17,005.
Denial of right to bid.
The heirs might, doubtless, by an agreement made out of
court, regulate the mode of awarding the land, and preclude
themselves from exercising the normal right to acquire it by
the highest bid. The court refused, however, to find any ob-
stacle to the exercise of this right, in an agreement “ that in
order to equalize the shares of the respective heirs, that pur-
part No. 2 [appraised at $9,800] shall pay to No. 1 [appraised
at $9,277:50] the sum of $248.33,” and “ to purpart No. 3, the
sum of $25.83.” A higher price could be bid for purpart
No. 2, and it might be assigned to the highest bidder.* If
the right of a party to bid, e. g., of a husband to bid in com-
petition with his wife and her sister, is denied, he may obtain
a rule to show cause why he should not be permitted to bid
for it. The court, as it determines the right, either discharges
the rule, or makes it absolute,” or the court may decide with-
out rule, at the time appointed to accept or refuse the purparts,
or it may permit the bidding subject to its future decision as
to the right.”
Bid ineffectual.
After a bid has been made, and accepted by the award of
the land to the bidder, the court will not permit a withdrawal
or amendment of it, on the ground that it was for more than
he intended; that his counsel who drew up the bid had mis-
conceived his instructions, and that he had not had time to
read the bid and discover the mistake. “ Each bidder,” says
Dwight, J., “has an equity that the highest bid, ‘above the
21112 Pa. 598. above the appraisement, but her right
22149 Pa. 412. was denied.
2357 Pa. 461. In Geibler’s Estate, 24 Mason’s Appeal, 41 Pa. 74.
1 Pears. 445, a widow bid $5 23 Eby’s Estate, 5 Pa. C. C. 434.
26 Rankin’s Appeal, 95 Pa. 358.
128 Partition in OrpHans’ Court.
valuation returned,’ shall be adopted. This equity cannot be
annulled by an allegation of mistake not mutual, but wholly
confined to the petitioning bidder.’’ Perhaps, for a fraud
practiced on the court, or the parties, an award of the land
to a bidder may be set aside. And possibly the court might
set it aside, if satisfied that a considerably higher bid would
be made, and that it had not been made at the proper time,
owing to a misapprehension, and if the application to set it
aside were made in a short time. But the fact that the bidder,
not having the money to pay the bid, was buying the land for
a stranger, from whom the money would be procured, would
not be reason for setting the award aside.* If all the heirs
have not been properly notified of the time for accepting or
refusing, so that some of them had no opportunity to bid, the
award at the highest bid may be set aside, and an alias rule
to accept or refuse may issue. At the second bidding, the
same party that bid successfully at the first may bid again, and
obtain the award of the land again.”
Allotment to the heir.
On the return of the rule, the court allots the land or the
purparts to the accepting heirs, either at the valuation, or at
the highest bid. In Sankey’s Appeal,®° the following was the
form of the decree of adjudication: “And now, to-wit, the
25th day of January, 1866, due proof of the service of the
rule having been made upon the heirs of John Sankey, de-
ceased, to come into court and elect to take, or refuse to take,
the real estate of the said decedent at the valuation and ap-
praisement made thereof by the jury of inquest, and said proof
having been adjudged sufficient, and all the heirs of the said
decedent having been called in open court, Jacob Sankey, the
eldest son of said decedent, appeared and elected to take all
27Emerick’s Estate, 1 W. N. C.
434; 11 Phila. 74.
28 Osborne’s Estate, 149 Pa. 412.
The court say: “ Had this application
been made promptly [it was made
eighteen months after the award of
the land], and had it been accom-
panied with an offer to give security
that the property should bring $1,200
over the amount of Mrs. Craft’s bid,
it is quite possible the court below
would have set aside the order
awarding the property to the ap-
pellee. This, however, is a matter
largely in its discretion, and the
learned judge may have been satis-
fied that the offer came from an
irresponsible person.” Would this
introduce competitive bidding?
29 Dull’s Appeal, 108 Pa. 604. The
successful bid was $2,500. At the
second bidding, a sealed bid of $4,008,
and another for $4,059 were pre-
sented. The last was made by the
heir who had made the former for
$2,500.
8055 Pa. 491. See form of decree,
in Updegrove vy. Updegrove, 1 Pa.
136.
Bivpine ABove VALUATION. 129
those two certain tracts of land in the first and third places in
the return to said writ of inquisition mentioned. And no one
appearing to offer a higher price for the said real estate than
the valuation and appraisement made thereof by the inquest
aforesaid, and no one of the said heirs having come into court,
either in person or by attorney, to take the same or any other
of the real estate mentioned in the said writ of inquisition and
the return thereto, whereupon the court order and adjudge
the said real estate elected to be taken by the said Jacob
Sankey to him, his heirs and assigns forever, at the valuation
and appraisement thereof made by the inquest as aforesaid.”
Revocation of allotment to accepting heir.
Despite service of the rule to accept or refuse, or to show
cause against a sale, according to the statutory method, by
publication, it is possible that an heir, residing beyond the
county or the State, e. g., in California, may fail to receive
actual notice. If, then, the land should be awarded to some
of the heirs present at the time mentioned in the rule, it is
within the sound discretion of the Orphans’ Court, generally
not reviewable by the appellate court, whether to set aside the
decree allotting the land or not. If, the service of the rule
having been in conformity to the statute, by publication in
one newspaper in the county in which the partition is held,
the Orphans’ Court refuses to set aside its decree, the Supreme
Court will not reverse.** If the alienee of an heir, by a sher-
iff’s sale of the interest of the latter, chooses the land at the
valuation, and subsequently to the allotment to him, the sher-
iff’s sale is set aside, the Orphans’ Court, on petition for a rule
to revoke the allotment, will set it aside.” Refusal or neglect
to comply with the order of the court in regard to the giving
of security for the owelty, will justify the court, on rule, in
vacating the award of the land to the heir. If he gives a recog-
nizance such as is required of him, viz., one by one person not
himself, which names no time for the payment of the owelty,
on the discovery of the defect in the recognizance, he should
31Sankey’s Appeal, 55 Pa. 491. accepting heir would sell at an ad-
There were a rule, and an alias rule,
upon the accepting heir to show
cause why the decree allotting to
him the land should not be vacated.
To the petitions for the rule, an-
swers were filed. The first rule was
discharged, on an agreement that the
vance of 10 per cent. to any one
procured within six months, to pay
so much for it. On the second rule,
testimony was taken, but the rule
was discharged.
32 Evans’ Estate, 150 Pa. 528.
180 Partition In Orpuans’ Court.
be called back into court to perfect it. On his failure to do
this, the court might vacate the allotment to him, and offer
the land to the other heirs, or, they refusing it, order it to be
sold. But it was error for the court, instead of giving him
this opportunity, to issue an alias rule on the heirs to come
in and accept or refuse, and at the same time, a rule on him
to show cause why the allotment to him should not be vacated.*
33 Gregg’s Appeal, 20 Pa. 148.
Time or Paying APPRAISEMENT OR Bip. 131
CHAPTER XV.
TIME OF PAYING APPRAISEMENT OR BID.
Payment of the valuation money.
When land is adjudged to an heir or other person entitled,
it is on the condition that he pay the owelty, or secure the
payment of it. The thirty-seventh section of the act of March
29, 1832,’ after directing the inquest to make and return a
just appraisement of the land, adds that the court may there-
upon order the same to the heirs, in a prescribed order, “in
every such case the party accepting the same, or some one on
his behalf, paying to the other parties interested their propor-
tionable parts of the value of such estate, according to the
just appraisement thereof, made in manner aforesaid, or giv-
ing good security, by recognizance or otherwise to the satis-
faction of the court, for the payment thereof, with legal in-
terest in some reasonable time, not exceeding twelve months,
as the court may direct.” The first section of the act of May
8, 1876,” has widened the discretion of the Orphans’ Court
with respect to the time of paying the owelty, in these words:
“Tn all cases in the Orphans’ Courts in this commonwealth,
in which real estate shall be taken by an heir or other person
legally authorized to take the same, charged with owelty, pay-
able to other heirs, or to others who hold the interest of such
other heirs, the said courts shall have power to fix, for the
payment of the principal of such owelty, such time or times
as in the judgment of the court shall be to the advantage of
those entitled to the estate. Provided, however, That the prin-
cipal and annual payment of legal interest thereon be ade-
quately secured.”
Time of payment and interest.
Under the thirty-seventh section of the act of March 29,
1832, the court was required to direct payment in “some
reasonable time, not exceeding twelve months.” The court
should give this direction, which should appear in the record,
or might be inferred from the recognizance actually entered
into. If there is nothing in the record, showing that the court
fixed the time for payment, and the recognizance fixes no time,
the allotment of the land should not be set aside, until the al-
12 P. & L. 3367. 22 P. & L. 3369.
132 Partition Iv Orruans’ Court.
lottee has had an opportunity to perfect the recognizance by
complying with an order as to the time of payment.*
Interest.
The heirs may agree, five of the purparts being accepted,
and the rest being refused, that the rest shall be sold by a
trustee, from time to time, and that the nonaccepting heirs
shall receive the proceeds of such sales, and only the difference
between the sums thus received, and the sum due them on
resettlement of the whole real estate, shall be payable on
the recognizances. For this reason, the recognizances may
name no sum of money, nor any time of payment, nor say
anything about interest. Such being the case, it was held in
Meyer’s Estate* that, there being no provision for interest in
the recognizance, interest was not payable by its terms, and
that it could not be demanded as a compensation for delay,
or as a penalty, since, there having been no demand for pay-
ment, and the principal not ascertained, allottees, had they
desired to pay, could not have done so. Says Fell, J.: “It
is only in considering the recognizances in connection with
the act of 1876° that any doubt arises. The act provides for
the payment of interest annually, but this provision relates to
the duty of the court to fix the time and to secure the payment
of the principal. It defines the duty of the judge where the
proceedings are adverse and in due course of law. If the terms
of the bonds had been fixed by the court, the charge of in-
terest might be considered as a necessary incident to the pay-
ment of the principal, and the omission to direct it, if not acci-
dental, as unauthorized. The court, in this case, was not
called upon to fix the terms of payment. The settlement as
to the amounts and times was made out of court. The terms
were fixed by the parties in interest. It was their right to
do this, and they having done it, we cannot now read into the
bonds that which they would have contained had their terms
been fixed by a judicial decree. There was no omission through
fraud, accident, or mistake. The instruments are complete in
themselves, and it must now be assumed that they contain all
that was stipulated for and embody the whole agreement of
the parties.”
3Gregg’s Appeal, 20 Pa. 148. 5 May 8th, supra.
4179 Pa. 157. How the question
arose does not clearly appear.
Time or Payina AprraIseMENT or Br. 133
Times actually fixed.
The times actually selected in the various cases have dif-
fered. Thus, the owelty, other than the widow’s third, has
been made payable at the expiration of one year;® in slightly
over seven months; ¢. g., the recognizance given August 17,
1874, was made payable April 1, 1875;7 in six months,® one-
third in three months, and the balance in nine months,’ in
somewhat more than five months; e. g., the award of the land
taking place October 16, 1883, the owelty being made payable
April 1, 1884.*° Of course, whenever the payment of the
valuation is deferred, it must, as the thirty-seventh section of
the act of March 29, 1832, and the act of May 8, 1876, re-
quire, bear interest; otherwise, by deferring payment, the
valuation would, in substance, be deviated from. In 1794 the
Supreme Court remarked: ‘The men appointed by the Or-
phans’ Court, or, where the parties cannot agree, the inquest,
are to make a just appraisement. The Orphans’ Courts are
appointed to limit a reasonable time for the payment of the
shares of the other children, but not to control or substan-
tially alter the sum affixed by those on whom that duty de-
volves by law. Upon the same principles, precisely, that a
widow, under the practice, gets her interest on one-third of the
principal charged on the lands, from the time of the child’s ac-
ceptance of the real property at a valuation, in order to obtain
a subsistence therewith, the children ought to receive the in-
terest on their distributive shares from the same period, and
for the same purpose.”
Payment by nonresidents.
The first section of the act of April 6, 1844,” enacts that:
“Tn cases of partition of estates made by any Orphans’ Court,
under authority of the acts relating to Orphans’ Courts, and
where the court shall have decreed any share or shares to any
heir or legal representative, not residing within this common-
wealth, with the payment of owelty annexed, it shall be lawful
for the court, upon application made by any party, lawfully
interested in the same, to order a rule upon the party, his or
her legal heirs or representatives, requiring the payment of
said owelty, at such time and upon such terms and conditions
6Shearer’s Appeal, 96 Pa. 61; 10 Barley v. Ziegler, 16 W. N. C.
Wynn v. Brooke, 5 R. 106. 218.
7Light v. Zeller, 144 Pa. 582. 11 Hubley v. Hamilton, 1 Y. 392.
8 Cubbage v. Nesmith, 3 W. 314. 122 P. & L. 3369; 1 Br. Purd. 607.
9 Riddle’s Appeal, 37 Pa. 177.
134 Partition In Orruans’ Court.
as the court shall direct; and if the said rule cannot be served
within this commonwealth, a publication thereof, as directed
by the first section of the act of March 26, 1808,” relating to
notice of partitions, shall be deemed an effectual service, and
upon return and proof thereof, and upon refusal or neglect to
comply with the said rule, the court may enforce the same by
ordering a sale of such share or shares, for the purposes afore-
said, as in other cases of sales under the act.”
Widow’s share.
The forty-first section of the act of March 29, 1832,” directs
that: “Should the widow of the decedent be living at the time
of the partition, she shall not be entitled to payment of the
sum at which her purpart or share of the estate shall be valued,
but the same, together with interest thereof, shall be and re-
main charged upon the premises, if the whole be taken by
one child or other descendant of the deceased, or upon the
respective shares, if divided as hereinbefore mentioned, and
the legal interest thereof shall be annually and regularly paid,
by the persons to whom such real estate shall be adjudged,
their heirs or assigns, holding the same, according to their
respective portions, to the said widow during her natural life,
in lieu and full satisfaction of her dower at common law, and
the same may be recovered by the widow by distress or other-
wise, as rents in this commonwealth are recoverable; on the
death of the widow, the said principal sum shall be paid by
the children or other lineal descendants, to whom the said real
estate shall have been adjudged, their heirs and assigns, hold-
ing the premises, to the persons thereunto legally entitled.”
Section 6, act April 7, 1807.
The sixth section of the act of April 7, 1807, enacts that:
“When partition is made of an intestate’s real estate, and a
part is allotted to each of his children or representatives, in
case there be a widow of the intestate living and entitled to a
part of the said real estate during her life, it shall be the duty
of the inquest or referees making partition, to estimate the
value of the said part, and to apportion the same among the
respective shares of the children or representatives, and upon
confirmation thereof by the Orphans’ Court, the same shall
remain as a charge upon the said shares, and the interest
thereof shall be annually and regularly paid to such widow, and
132 P. & L. 3361. 1442 P. & L. 3871.
Time or Paying APPRAISEMENT oR Bin. 135
may be recovered by action of debt, or by distress, as rents
are usually recovered in this commonwealth; and where the
estate of the intestate is divided into fewer parts than there
are children or representatives, the same proceedings shall be
had to estimate and apportion the widow’s purpart among the
said parts, which shall remain a charge thereon, and the in-
terest thereof shall be paid and may be recovered as aforesaid;
and upon the decease of any such widow, the whole value of
the said purparts shall be distributed among all the said chil-
dren or representatives in proportion to their respective shares
according to law.”»
Nature of widow’s interest.
We have elsewhere seen that, when the land can be divided
without prejudice, so as to set off the widow’s share to her in
specie, by metes and bounds, it should be so set off. When
this is impossible, she has a right that, when the land is ac-
cepted by an heir at the appraisement or at a higher bid, or
when the land is sold, the duty of paying to her the interest
on one-third of its valuation, or of the bid, or of the price
obtained at the sale, shall attach to it, and to the person who,
for the time being, shall be the owner of it. Various attempts
have been made to classify this interest. It has been described
as “in all respects of the nature of a rent charge,”!® “a rent
arising out of the land, and, therefore, an incorporeal heredita-
ment, ranking as real estate,” “as an interest in the land,
and a freehold estate.”** Occasionally, it has been spoken of
as a lien, especially when regard has been had to the principal
sum, payable at the widow’s death.° In Mann’s Appeal”?
Thompson, J., says: “It is conclusively settled in this State
that a widow’s dower interest in the lands of her deceased
husband is not changed into personalty by proceedings in par-
tition, by which it is valued, and the interest becomes an an-
nual charge. It retains its character as realty, notwithstand-
and not proportional
15 Yeates, J., says of the section, in
that it was intended to supply an
omission in the twenty-second sec-
tion of the act of April 19, 1794, but
not to prevent physical division of
the land between the widow and col-
lateral heirs of the husband. Young
v. Bickel, 1 8S. & R. 467. In Wil-
liams v. White, 35 Pa. 514, though
the six purparts allotted to the six
heirs were not of equal value, the
widow’s third was imposed on them
equal
parts.
16 Shaupe v. Shaupe, 12 8. & R. 9;
Thomas vy. Simpson, 3 Pa. 60.
17 Miller v. Lindsay, 3 W. & &.
456.
18 Bachman v. Chrisman, 23 Pa.
163.
19 Medlar v. Aulenbach, 2 Pa. 355;
Hise v. Geiger, 7 W. & 8. 273; Kurtz’s
Appeal, 26 Pa. 465.
2050 Pa. 375.
136 Partition iv Orpuans’ Court.
ing. This may be considered elementary law now with us.”
Williams, J., thus summarizes the nature of the interest:
“Where the widow’s share is laid off by metes and bounds,
she has a life estate in the portion assigned to her as land,
which carries with it as a necessary incident, the right to re-
ceive the rents and profits; but where the estate is accepted
at the appraisement or sold, she has a life estate, not in any
specific portion of the land, but in an equivalent share of the
rents and profits of the whole estate, measured by the interest
on her share of its value as ascertained by appraisement or
sale. In whichever form, therefore, the assignment of her
share is made, she has an estate in the land of which her hus-
band died seized, and, by force of the statute, it vests in her
eo instanti the husband dies.”*! In 1899, Fell, J., remarked:
“ Difficulty has been experienced in all attempts to define the
precise nature of the interest which a widow takes in this
State, in lieu of her dower at common law. The cases, how-
ever, agree that it is an interest in land, and not a mere charge
or lien; and that the character cf her interest is not changed
by the act of 1832, which prescribes the form of ascertaining
and assigning it, and changes somewhat the method of its use
and enjoyment.”
Widow’s share as affected by decree.
The forty-first section of the act of March 29, 1832, directs
that the widow shall not be paid the sum at which her purpart
shall be valued, “‘ but the same, together with interest thereof,
shall be and remain charged upon the premises * * * or
upon the respective shares, if divided.” The charge of the
widow’s interest is not the effect of a decree of the court, or
of the securities, mortgage, or recognizance, which the accept-
ing heir may give, but of the statute itself.7* It exists, there-
fore, though no decree of the court directs it. In Medlar v.
Aulenbach,™ Rogers, J., distinguishes between the widow’s
21 Gourley v. Kinley, 66 Pa. 271.
Cf. Miller v. Leidig, 3 W. & S. 456;
Shouffler v. Coover, 1 W. & 8. 400;
Deitz v. Beard, 2 W. 170; Shaupe v.
Shaupe, 12 8. & R. 12; Soley’s Estate,
10 W. N. C. 67; Hageman v. Esterly,
11 Pa. C. C. 609; Tospon v. Sipe, 116
Pa. 588; Diefenderfer v. Eshleman,
113 Pa. 305; Luther v. Wagner, 107
Pa. 343; Dickinson v. Beyer, 87 Pa.
274; Schall’s Appeal, 40 Pa. 170;
Kunselman v. Stine, 192 Pa. 462.
22 Kunselman vy. Stine, 192 Pa. 462.
See also remarks of Williams, J., in
Kunselman vy. Stine, 183 Pa. 1.
23De Haven v. Bartholomew, 57
Pa. 126; Shelly v. Shelly, 8 W. & S.
153; Medlar vy. Aulenbach, 2 P. &
W. 355.
242 P. & W. 355. Under the
twenty-second section of the act of
April 19, 1794.
Time or Payina AprraIsSEMENT oR Bip. 137
shares in the valuation money and the other portion of it,
saying of the latter that a recognizance, or mortgage, is neces-
sary to charge it on the premises. ‘ This is true, as regards
their purpart, as the act has left it discretionary with the court
in these cases to take either real or personal security; but it
is not true in respect to the widow’s share, which is made a lien
by the direction of the act, in language which it would be diffi-
cult. to misapprehend, a security provided for her, of which the
court, even if they had so intended, cannot deprive her.” And,
when the court requires a bond, mortgage, or recognizance, the
statutory lien or estate is not merged in this security, so that
the widow, or at her death the person entitled to the principal,
is not compelled to sue upon the latter.” Besides the lien, it
is desirable to have the personal liability of the heir, or his
sureties, and, therefore, the court may require a bond or recog-
nizance.”*
Widow of heir.
The forty-first section of the act of March 29, 1832, directs
that “should the widow of the decedent be living at the time
of the partition,” 7%. e., of his estate, her interest “‘ shall be
and remain charged on the premises.” This language does
not, therefore, apply to the widow of an heir who dies subse-
quently to the person whose estate is undergoing partition.”
It seems to have been assumed, however, that her interest
should be charged on the land by recognizance, under a decree
of the court. Thus, in Danhouse’s Estate,* the court required
the accepting heir to enter into recognizance to pay to the
widow of an heir, who died without issue, the interest on one-
that there was a balance in excess
of debts, the interest of the heir’s
25 Medlar v. Aulenbach, 2 P. & W.
355. In Hageman v. Esterly, 11 Pa. C.
C. 609, on the death of a widow, and
the foreclosure of a mortgage, given
to secure the annual interest on a
sum to her, for life, and the sum at
her death to heirs, it was held, that
the fund being too small to pay
arrears of dower and the principal
sum in full, there must be a pro rata
payment on account of the arrears
and of the principal sum.
26 Good v. Good, 7 W. 195.
27 Martin's Estate, 1 Chest. 512.
The court directed the investment of
the share of the deceased heir, until
the settlement of his estate, and
stated that, if it should then appear
widow might be secured in the an-
cestor's, or some other estate.
28 130 Pa. 256; Evans v. Ross, 107
Pa. 231; Shearer’s Appeal, 96 Pa. 61;
Knauss’ Estate, 3 Pa. C. C. 584;
Baker v. Leibert, 125 Pa. 106. The
language of Baker vy. Leibert, Paxson,
C. J., leaves doubtful the right of the
court to make partition of the dead
heir's interest between his widow and
his heirs, in the partition of his an-
cestors’ estate, but, once made, this
subpartition cannot be collaterally
attacked, and the heir’s widow’s right
of distress cannot be questioned in
replevin.
138 Partition in Orpuans’ Court.
half of two-thirds of the valuation money, during the life of
the decedent’s widow, to whom the interest on one-third during
life, was payable, and after the death of the decedent’s widow,
to pay to the heir’s widow the interest on one-half of the entire
valuation money, during the remainder of her natural life.
Life tenant.
A life tenant cannot accept the land at the valuation, but
only the heirs in fee. But they are obliged to pay the tenant
for life interest upon his share. “ This,” says Paxson, J., “is
specifically provided for, in the act of Assembly, in the case
of a widow. By analogy, the interest of other life tenants can
be secured in the same manner. We are of opinion that our
entire system of partition in the Orphans’ Court contemplates
that, where the share of a life tenant cannot be set off to him
by metes and bounds, he shall have the interest upon its value
instead.”
29 Rankin’s Appeal, 95 Pa. 358.
Security ror Vaxvuation Money. 139
CHAPTER XVI.
SECURITY FOR VALUATION MONEY.
Security for the valuation money.
The thirty-seventh section of the act of March 29, 1832,
directs the Orphans’ Court to order the land to the heirs in a
prescribed method, “in every such case the party accepting the
same, or some one on his behalf, paying to the other parties
interested their proportionable parts of the value of such estate,
according to the just appraisement thereof, made in manner
aforesaid, or giving good security by recognizance or otherwise,
to the satisfaction of the court, for the payment thereof with
legal interest, in some reasonable time, not exceeding twelve
months, as the court may direct.”
Forms of security.
The valuation money is directed to be secured “ by
recognizance or otherwise.” A double object has been sought
by the courts in determining on what security to insist; the
obtaining of personal liability, and the obtaining of a lien on
the land allotted. In many cases, bonds, without or with real
security, have been taken, and they have been taken to protect
not merely that portion of the valuation which is payable in
some short time, but also that portion thereof that is charged
by law upon the land, as the principal, the interest of which is
annually payable to the widow? It has been expressly assumed
in a few cases, that no perebael liability for the valuation
money attached to the allottee,® and no attempt apparently to
fasten such a liability upon an accepting heir has ever been
made, except in the case of a widow’s third, which is made a
charge on the land by the act of March 29, 1832.4 The bond,
also, having one or more sureties in it, furnished, not only the
12 P. & L. 3367; 1 Br. Purd. 606. rather than a bond, and, as against
2Bond to secure widow’s third.
Unangst v. Kraemer, 8 W. & 8.391;
Pidcock v. Bye, 3 R. 183; Eshelman
v. Witmer, 2 W. 263. When the
record showed that the accepting
heir “entered into the usual securi-
ties to pay the other heirs according
to law,” not describing the securities,
and no securities can be found of
record, it will not be assumed that
the security was a_ recognizance,
a judgment creditor of the accepting
heir, the owelty, except for the
widow’s third, will not be a lien.
Hillbish’s Appeal, 89 Pa. 490.
3 Bellas v. Evans, 3 P. & W. 479;
Smith v. Scudder, 11 8. & R. 325.
4 Penna. Annuity Co. v. Vansyckel,
2 Pitts. 535; Kunselman v. Stine,
192 Pa. 463; York Borough vy. Welsh,
117 Pa, 174.
140 . Partition in Orpnans’ Court.
personal liability of the accepting heir, but that of his co-
obligors.> In Walton v. Willis,® it was said to be the “ practice
of the Orphans’ Court throughout the State, only to require
him [the accepting heir] to give bonds.” And McKean, C. J.,
remarked that the “ practice was illegal and improper, for the
Orphans’ Court ought instead of bonds, which were a mere
personal security, to take recognizances by which the lands
themselves would be bound for the payment of the distributive
shares.”
Bonds and mortgages.
In many cases, both bonds and mortgages have been re-
quired,’ or occasionally,* the widow’s third being a charge by
law, a bond has been taken to secure the payment of it, and a
bond and mortgage to secure the remainder of the owelty.
Sometimes the bond has contained a warrant of attorney to
confess judgment.? In McCarty v. Gordon,’® Kennedy, J.,
remarked: ‘“ Having reason to believe that it has been the
practice of the Orphans’ Court throughout the State, ever since
the act [of April 19, 1794] came into operation, to require and
take such security with one or more sureties joined in a bond
or recognizance, with the party taking the land at the appraise-
ment, it would be highly improper as well as inconvenient now
to declare such bond or recognizance void, as to any part of it,
even as regards the sureties, upon the ground that the Orphans’
Court is not directed or required to take it.”"* Tilghman, C.
J., said, in 1819: “The act of 1764, under which it [a
recognizance | was taken, directs security to be given in such
manner as the Orphans’ Court shall limit and appoint. The
matter being thus left to the discretion of the court, different
courts have adopted different forms; and some have taken
bonds, and some recognizances. Some take them in the name
of the presiding judge and his successors; and others, of the
commonwealth.” Sometimes bonds accompany recogni-
zances.* As the latter are a personal, as well as a real security,
5 Only bonds were given in Pid- 9Kline v. Bowman, 19 Pa. 24;
cock v. Bye, 3 R. 183 (1800); Hawk Biggert v. Biggert, 7 W. 563.
v. Geddis, 16 8. & R. 23; Eshelman 104 Wh. 321 (1839).
v. Witmer, 2 W. 263. 11The surety is liable without
61 Dall. 265. previous resort to the land.
7Shurlock v. Smith, 2 D. R. 347; 12 Kean v. Franklin, 5 8. & R. 147.
Brooks v. Smyser, 48 Pa. 86; Hise v. 13 Shelly v. Shelly, 8 W. & 8. 153;
Geiger, 7 W. & 8. 273. Haven y. Bartholomew, 57 Pa. 126;
8 Medlar v. Aulenbach, 2 P. & W. Stecker v. Shimer, 5 Wh. 452;
355; Eshelman v. Witmer, 2 W. 263; Dutch’s Appeal, 57 Pa. 461.
McCarty v. Gordon, 4 Wh. 321.
Srcuriry ror Varuation Money. 141
the bond is sometimes given to each particular heir for his
share of the owelty, while the recognizance is general, securing
the owelty to all the heirs, and often not specifying who these
are, or how much is owing to each.* The bond, or recogni-
zance, is always executed with surety; one, two, or rarely three.
Reasons for requiring recognizances.
In a case already cited, McKean, C. J., expressed the opinion
that the Orphans’ Court should require recognizances, instead
of bonds, the alleged reason being that under the former the
lands themselves would be bound. The recognizance, however,
is not merely an instrument for preserving a right to resort to
the land. It binds personally the recognizors, both the prin-
cipal and the sureties. In Taggart v. Cooper,” the recognizance
was in this form: ‘‘ And the said Robert Taggart and William
Murray do jointly and severally acknowledge themselves to be
held and firmly bound unto Jacob Rush, Esq., president of this
court, and his successors, in the sum of £2,377 14s. 6d, money
aforesaid, which sum the said Robert willeth and granteth to
be levied on the said tract of land and premises, upon the con-
dition above mentioned.” Murray when sued objected that,
by its express terms, this recognizance had force only against
the land taken by Taggart. ‘ For what purpose,” asks
Tilghman, C. J., “was Murray introduced, if he was not to
be bound? Besides, he is expressly bound for payment of
£2,377 14s. 6d, and that is sufficient, without adding any words
about levying on his goods and chattels, lands and tenements.
The words in this recognizance, respecting the lands on which
the money was to be levied, are confined to the lands assigned
by the court to Robert Taggart, and I presume the intention
was, that those lands and no other, should be bound from the
date of the recognizance. Whether any other lands were
bound is not now in question. The point is, whether Murray
was so bound, that an action may be supported against hin,
and that he was, I have no doubt.” And on the death of the
principal cognizor, his executor is made a defendant, and judg-
ment de bonis testatoris is obtained.*® Said Gibson, J., in
Kean vy. Ellmaker:'” “The recognizor and the land are both
14 Knauss’ Estate, 3 Pa. C. C.584; monwealth v. Hantz, 2 P. & W. 333;
Leibert’s Appeal, 119 Pa. 517; Good v. Good, 7 W. 195.
Walker v. De Haven, 50 Pa. 101. 16 Reigart v. Ellmacher, 6 8S. & R.
1518. & R. 497. Of., also, Com- 44.
177 8. & RB. 1.
142 Partition in Orpuans’ Court.
debtor; the first directly and personally, in consequence of the
contract to pay; the second as the fund in the hands of whom-
soever it may be; but the recognizor is the person against whom
the suit is to be brought, and until he is in court, the cause
cannot proceed for want of parties.” Though the lien of the
recognizance is discharged by a sheriff’s sale of the premises,
such discharge does not terminate the liability of the recog-
nizor for unpaid portions of the money secured by it.*®
Form of recognizance.
No form of recognizance is prescribed by law.” “ A recog-
nizance,” says Strong, J., “is a debt of record, entered into, or
acknowledged, before a court or officer having authority to take
it. The form is not essential. Though usually in,the form of
a penal obligation, it is not necessarily so. It need not even
be signed by the cognizor, and a short memorandum of it is
sufficient. The Legislature has prescribed no form for recogni-
zances given in partition in the Orphans’ Court, and, therefore,
an obligation of record in any form taken before the court or
its clerk, is sufficient.”*° It need have no penalty, or the blank
in the penal clause for a sum of money may be unfilled.” It
will, nevertheless, be a good recognizance, and preserve the
lien of the owelty.” It need not name the persons to whom
the owelty is payable, nor otherwise designate them, than as
the heirs and legal representatives of the decedent; nor need
it name the total sum of money payable as owelty. It is
enough if it undertakes well and truly to pay the amount of
the valuation of the real estate, as valued by the inquest. It
is unnecessary to add that the recognizance need not distribute
this sum among the parties entitled, naming how much is pay-
able to the widow, and how much, severally, to the others. If
it stipulates to pay to the heirs their shares of $850 within one
year, with lawful interest, the widow’s third interest, and, at
her death, the principal, will be secured by it. If, the land
18Commonwealth v. McIntire, 8 22 Riddle’s Appeal, 37 Pa. 177.
Pa. 295; Dodson’s Estate, 6 Pa. C. C. 23 Blanchard v. Commonwealth, 6
617. W. 309; Shelly v. Shelly, 8 W. & S.
19 Meyer’s Estate, 179 Pa. 157; 153; Riddle’s Appeal, 37 Pa. 177;
Bailey v. Commonwealth, 41 Pa. 473; Meyer’s Estate, 179 Pa. 157; Bailey
Riddle’s Appeal, 37 Pa. 177. v. Commonwealth, 41 Pa. 473.
20 Riddle’s Appeal, 37 Pa. 177. 24 Riddle’s Appeal, 37 Pa. 177;
21 The penal sum may vary. It is Meyer’s Estate, 179 Pa. 157.
often in twice the amount of the 25 Bailey v. Commonwealth, 41 Pa.
valuation. Light v. Zeller, 144 Pa. 473.
582; Taggart v. Cooper, 1 8S. & R.
497.
SEcuriTy ror Varuation Money. 143
being accepted by a husband, in right of his wife, he gives a
recognizance to the other heirs and to the wife, it will be void
as to her, since her share in the land remaining in specie, she
will be entitled to none of the owelty.*® If land is awarded to
two jointly, they properly give a joint recognizance; but if
three tracts are awarded to three heirs jointly, and they enter
into several recognizances, one for one of the tracts, another
for another, and the third for the third, the other heirs assent-
ing, a cognizor cannot complain, when sued on the recogni-
zance, of the fact that the recognizance was not joint, nor for
the owelty due on all the tracts; and if two tracts are taken
by one person, he may give a single recognizance for combined
owelties.” There is always one surety, two,*! or more, at
the option of the court. A married woman, accepting land,
may give the recognizance, alone, or jointly with her husband.
The other heirs would have a right to set off against the owelty
they have undertaken to pay, that which she has undertaken
to pay to them.*” A guardian accepting for his wards, they
by him, or he alone, may make the recognizance.** The recog-
nizance is made to the commonwealth, though early in the
century it was not infrequently made to the president judge
of the Orphans’ Court.**
Errors in recognizance.
If errors are made in the recognizance, either as respects the
recognizees, or the money to which they are entitled, the
proper course is, not to attempt collaterally to reform it, in the
action upon the recognizance, but to petition the Orphans’
Court for a review.* In one case such a petition was pre-
sented within one month, in another within five*’ months
26 McMillan’s Appeal, 52 Pa. 434.
27 White v. Commonwealth, 110 Pa.
90.
28 Ebbs v. Commonwealth, 11 Pa.
374.
29 Allen v. Getz, 2 P. & W. 310;
Reigart v. Ellmaker, 14 8. & R. 121.
30 Taggart v. Cooper, 1 S. & R.
497; Beyer v. Reesor, 5 W. & 8. 501;
Cubbage v. Nesmith, 3 W. 314; Hof-
fer v. Wightman, 5 W. 205; Bailey
v. Commonwealth, 41 Pa. 473;
Riddle’s Appeal, 37 Pa. 177.
31 Holman’s Appeal, 106 Pa. 502;
Allen v. Getz, 2 P. & W. 310;
Mehaffy v. Dobbs, 9 W. 363.
32 Light v. Zeller, 144 Pa. 582. Cf.
Harnish’s Estate, 5 Leg. Opin. 141.
33 Gelbach’s Appeal, 8 8. & R. 205;
Eberts vy. Eberts, 55 Pa. 110; P. & R.
R. R. v. Commonwealth, 2 Penny. 76.
34 Kean v. Franklin, 5 8. & R. 147;
Commonwealth v. Shuman’s Admr.,
18 Pa. 343; Reigart v. Ellmaker, 6
S. & R. 48; 148. & R. 121; Good v.
Good, 7 W. 195; Taggart v. Cooper,
18. & R. 497; Hubley v. Hamilton,
1 Y. 392.
35 Donaghy v. Gill, 130 Pa. 296.
36 Dutch’s Appeal, 57 Pa. 461.
87 Dornblaser’s Estate, 22 Pa. C. C.
379.
144 Partition iv OrpHans’ Court.
after the giving of the recognizance; in another® within five
years. All the persons who will be affected by the proposed
amendment must be made parties — the accepting heir, terre-
tenants, the surety in the recognizance, the recognizees to whom
less money will be payable if the reform is made.*? Under the
guise of reforming the recognizance, the Orphans’ Court must
not arrogate to itself the function of the inquest. If, e. g., the
inquest has returned a tract as worth $60 per acre, and as con-
taining 200 acres, and, therefore, as of the value of $12,000,
the Orphans’ Court cannot reform the recognizance by making
it for a tract of 243 acres at $60 per acre.*®
Obstacles to reform.
No reform can be made in a recognizance, the effect of which
would be to increase the burdens of the surety, the accepting
heir, or one who has purchased the land, or a part of it, from
him. If, for example, the decree in partition required the
recognizor to give a recognizance to secure the interest on one-
third of the valuation to the widow for life, she being in fact
devisee of the whole for life, the recognizance can be subse-
quently changed so as to require, for the future, the interest on
the whole to be paid to her, but not so as to require the recog-
nizor to pay to her any interest on sums he may already have
paid to the persons entitled under the original recognizance to
the other two-thirds.*t In Shearer’s Estate,” an heir died since
his father, leaving his mother, his widow, and brothers and
sisters. The widow was entitled to the interest on one-half of
his purpart for life; and the mother to the interest on the
whole of it for life, subject to the widow’s interest. After the
death of the widow or of the mother, the one-half principal
became payable to the brothers and sisters. The recognizance
required the payment of the interest on one-half of this heir’s
purpart to the widow, and that on the other half to the mother
38 Shearer’s Appeal, 96 Pa. 61; ordered the recognizor, after the re-
Galbraith v. Galbraith, 6 W. 112;
Donaghy’s Estate, 152 Pa. 92;
Donaghy v. Gill, 130 Pa. 296.
39 Galbraith v. Galbraith, 6 W. 112.
401d.
41Donaghy’s Estate, 152 Pa. 92.
In the action on the recognizance,
unreformed, the widow could recover
the interest on one-third. Donaghy
vy. Gill, 130 Pa. 296. In Heller’s Es-
tate, 8 Luz. L. Reg. 294, the court
cognizance had been given, to pay
into court a sum sufficient to dis-
charge a debt of the decedent, on a
deficiency of personal assets.
4296 Pa. 61. After one has bought
all or some of the land from the
accepting heir, a reform of the recog-
nizance that would increase the
burden on the terre-tenant would be
impossible. Galbraith v. Galbraith, 6
W. 112.
Sxcurtry ror Vatuation Money. 145
during their joint lives, and at their respective deaths the pay-
ment of the principal to the heirs of the deceased heir. It
made no provision that, after the death of the mother, the
widow should also receive the interest on one-half of the third
which had been allotted to the mother as widow of the primary
decedent, and that the principal thereof should be paid to the
heir’s heirs, at her death. After the death of one of the
sureties, the accepting heir became insolvent. Judgment was
obtained, on the recognizance, against him and the surviving
surety, and a sheriff’s sale of the land took place, from the
proceeds of which all arrears of interest then due were paid to
the mother and the widow, and the sums due to the other
heirs. At this sale the surviving surety became the purchaser.
An application was then made to the Orphans’ Court to reform
the recognizance. It was too late. “ After the recognizances
passed into judgment, which was finally executed by the sale of
the land on which they were a lien, it is too late to go behind
all these proceedings and seek to impose additional burdens on
the sureties in the recognizances, or on the land in the hands of
the sheriff’s vendee. And moreover, if appellant, as surety,
paid part of the recognizance given to secure the widow’s inter-
est, he has a right to call upon the personal representatives of
his cosurety for contribution, and, hence, he might be seriously
prejudiced by the decree vacating the recognizance.’
No obstacle to reform.
Before any change has occurred in the situation of the
parties, and when the reform of the recognizance would in-
crease the burdens of neither accepting heir, surety, nor terre
tenant, it will be permissible. Thus, the recognizance securing
equal shares in the owelty to the heirs, it may be shown, shortly
after it is made, that certain heirs have been advanced. On
petition supported by the necessary evidence, the Orphans’
Court may order the original bond and recognizance to be
destroyed or cancelled, and a new bond and recognizance,
securing to the heirs their proper shares in the owelty.“* The
court might reduce the owelty to be paid by the recognizor, on
43 In conclusion, Sterrett, J., added:
“But if upon notice to all parties
interested, and without prejudice to
either of the sureties, the original
decree can be so amended as to more
clearly define and better secure the
interest to which each of the widows
10
is entitled, there is no good reason
why it should not be done; and to
the end that such further proceed-
ings may be taken in the court be-
low, the decree should be reversed
without prejudice.”
44 Dutch’s Appeal, 57 Pa. 461.
146 Partition in OrpHans’ Covrt.
account of a mortgage upon the premises, of which the inquest
took no account, in the absence of a personal fund sufficient to
pay it. If there is such personal fund, the court will decline
to reduce the recognizance, especially if, for fourteen years, the
recognizees have been beguiled into believing that the mort-
gage has been paid out of the personalty, by the administrator,
the husband of the accepting heir, who has taken credit in his
account for the mortgage as “ assumed” by him or his wife.
After the heirs have been deprived of the amount of the mort-
gage from the personal fund, it would be improper to permit
them to be deprived of it again out of the real fund, for the
benefit of the accepting heir, whose connivance with the admin-
istrator has made the loss of the personal fund possible.*
Reduction of value of premises.
_ Should the land undergo deterioration by fire, or otherwise,
between the holding of the inquest and the time for accepting
or refusing, the parties have a remedy in the right to refuse, and
require a sale of the premises. If the deterioration takes place
after acceptance, and before the giving of recognizance, pos-
sibly the court would allow a reconsideration, and a refusal to
accept, or would allow an abatement from the recognizance.
When, however, the recognizance has been given, and the land
decreed to the accepting heir, it becomes his. The title of the
other heirs is divested. Should then a fire occur upon the
premises, the loss will be wholly the acceptant’s, and the court
will not, on his petition, transfer any of it, by reducing his
recognizance.*®
Reform unnecessary.
In White v. Commonwealth,” the decedent’s will gave to
his widow one-third of his land in fee. In the partition the
land was awarded at the appraisement to sons, who were
directed by the court to enter into a recognizance for the pay-
ment of the shares of the other heirs within one year, and to
secure the interest of the widow. A recognizance was given, con-
ditioned that the recognizors should pay “ to the other heirs
* * * their respective shares of the aforesaid valuation,
45 Leibert’s Appeal, 119 Pa. 525; $3,407.97, for debts of the decedent,
Knauss’ Estate, 3 Pa. C. C. 584. In paid by the accepting heir.
Dresher v. Allentown Water Co., 52 46 Dornblaser’s Estate, 22 Pa. C. C.
Pa. 225, two months after the recog- 378.
nizance was given for $6,827.49, the 47110 Pa. 90.
court directed a credit upon it of
Srucurity ror Vartuation Money. 147
* * * and shall pay the interest on so much thereof, as
interest should be paid on, to the widow * * * during
each year of her life, in equal semi-annual installments.” The
auditor, appointed to ascertain the shares of the heirs, found
that the proceeds for distribution were $2,894.04, and “ sets
to the widow, as per decree of the court and will, the one-third
part of this amount, or $965.68. Tor sixteen years, the widow
received interest on this sum. In an action then brought by
her, on the recognizance, she was permitted to recover not only
the arrears of interest, but the principal, $965.68, there being
found nothing in the phraseology of the recognizance incon-
sistent with this result. The interpretation of it assisted by the
will avoided the need of any reformation.
Distribution of owelty — Refunding receipts — Credits.
In making distribution of the owelty subject to which an
heir accepts lands, it seems to be assumed that creditors of the
decedent are entitled to be paid, if the personal estate has been
settled by the administrator, and there are no funds thereof
with which to pay these debts, and the debts still continue to
bo a lien.“ So, a balance due the administrator, on the settle-
ment of his account, must be paid out of the owelty.*” The
liens which exist upon the shares of any of the heirs, would
then be entitled to payment out of their shares of the owelty.
Tt follows that the owelty should not be paid to the heirs, when
there is a possibility of the existence of ancestral debts, or of
liens on the individual shares of the heirs, unless they give
refunding bonds, in case such debts or liens may be subse-
quently discovered. Contrasting partition in the Common
Pleas with that in the Orphans’ Court, Huston, J., said of the
latter, “each one, [heir] on receiving his share, must have
given a refunding receipt in case any old debts appeared affect-
ing the property.”
Auditor.
Instead of relying on the refunding bonds, for the due pro-
tection of lien creditor, the court may appoint an auditor, for
the purpose of ascertaining and reporting liens and incum-
brances affecting the interests of the parties, and to marshal
48 Diermond v. Robinson, 2 Y. 324. 50 Diermond v. Robinson, 2 Y. 324.
49]d.; Stewart v. Allegheny Na- 51 Seaton v. Barry, 4 W. & S. 183.
tional Bank, 101 Pa. 342.
148 Partition In OrpHans’ Court.
the same, and also to ascertain and apportion owelty and
dower, and the costs and expenses of the partition, and to state
the amount of recognizances and bonds to be given by the
parties accepting the land.’ The court may also, on the repre-
sentation that there are debts of the decedent, and that there
is a deficiency of personal assets, order the accepting heir to
pay a sum of money into court, so as to avoid a sale for the
payment of debts.*?
Number of recognizances.
Formerly a separate recognizance was occasionally given to
the widow, and to each of the heirs for his share of the valua-
tion presently payable, and payable at the death of the widow.™
It is more usual to give one recognizance, conditioned to pay to
the widow and heirs, severally, the shares of the valuation to
which they are entitled. In 1837, Gibson, C. J., remarked:
“In some parts of the State, it is true, that it has been the
practice to take a separate recognizance to each child, but as
the costs were necessarily rendered oppressive by it where
there were many distributees and several purchasers or ac-
ceptants of distinct parts of the estate, it has been generally,
if not universally, abandoned. In Ramsey v. Alexander, 5 8.
& R. 338, the recognizances were multiplied by it to the
exorbitant number of 480.”
Indexing in prothonotary’s office unnecessary.
The third section of the act of April 22, 1856," enacts that
“ the lien of no judgment, recognizance, execution levied on real
estate in the same or another county, or of writs of scire facias
to revive or have execution of judgments, shall commence or
be continued as against any purchaser or mortgagee, unless the
same be indexed in the county where the real estate is situated,
in a book to be called the judgment index, and it shall be the
duty of the prothonotary or clerk forthwith to index the same
according to priority of date, and the plaintiff shall furnish the
proper information to enable him to perform said duty.” This
act does not apply to recognizances given in the Orphans’
Court. It is neither necessary nor practicable to index such
52 Sutton’s Appeal, 112 Pa. 598; 55 Blanchard v. Commonwealth, 6
Small’s Appeal, 23 W. N. C. 20. W. 309; Riddle’s Appeal, 37 Pa. 177;
53 Heller’s Estate, 8 Luz. L. Reg. Meyer’s Estate, 179 Pa. 157.
294. 561 P. & L. 2484; 1 Br. Purd. S24.
54 Shouffler v. Coover, 1 W. & 8.
400; Mehaffy v. Dobbs, 9 W. 363.
Srecurtry ror Vatuation Money. 149
recognizances in the office of the prothonotary.” “ Orphans’
Court recognizances,” says Green, J., “ such as this, are directly
in the line of the title. They are a part of the very pro-
ceedings by means of which title is derived, and cannot be
overlooked if the title is really examined. We have said on
three distinct occasions,°’ that there is a radical difference be-
tween these liens and those that appear on the record of the
Common Pleas, that the former are in the line of the title,
while the latter are outside.”
Lien of the recognizance.
The widow’s third or half is a lien, or charge, by law on the
land accepted by the heir, but as to the remainder of the
valuation money it is not a lien, unless made so by a mort-
gage, judgment, or recognizance. A recognizance, however,
is a lien upon the land accepted, not, says Gibson, C. J., by
any act of Assembly, or by common law, but by “long and
continued usage.’ It binds, not merely the shares in the
land which have been drawn from the other heirs to the accept-
ing heir; not merely, e. g., four undivided fifths, if the accepting
heir was one of five, but his entire interest in the land, the
five-fifths." But other land of the accepting heir is not
bound. When the husband of an heir accepts in right of
his wife, for himself, and not for her, as her agent, he acquires
the shares of the other heirs, but not that of his wife. His
recognizance, therefore, becomes a lien only on the shares
acquired by him, but not on her share, which she continues to
retain. Though the sureties in the recognizance become
personally liable for the payment of the owelty, it does not
attach a lien to any of their lands or chattels. Only when a
the sum of all the valuations on
57 Holman’s Appeal, 106 Pa. 502.
three tracts taken by the heir, it is
58 Riddle’s Appeal, 37 Pa. 181;
Bailey v. Commonwealth, 41 Pa. 478;
McCandless’ Appeal, 98 Pa. 494.
59 Hillbish’s Appeal, 89 Pa. 490.
60 Allen v. Reesor, 16 8. & R. 10;
Kean vy. Franklin, 5 8S. & R. 147;
Walton v. Willis, 1 Dall. 265; Com-
monwealth v. Hantz, 2 P. & W. 333;
Beatty v. Smith, 4 Y. 102; Share v.
Anderson, 7 S. & R. 43; Ebbs v.
Commonwealth, 11 Pa. 374; Reigart
v. Ellmaker, 6 S. & R. 44.
61 McCandless’ Appeal, 98 Pa. 489;
Snively’s Estate, 129 Pa. 250; Bark-
ley v. Adams, 158 Pa. 396. Yet
if but one recognizance is given for
a lien on each tract only for the
valuation of it. Allen v. Getz, 2
P. & W. 310. The land being taken
by a married woman heir, the
recognizance given by her, or by her
husband as agent for her, binds the
whole land. Snively’s Estate, 129
Pa. 250; Barkley v. Adams, 158 Pa.
396.
62 Allen vy. Getz, 2 P. & W. 310;
Crawford v. Crawford, 2 W. 339.
63 Johnson v. Matson, 1 P. & W.
371; Kean v. Ridgway, 16 8 & R.
60; Hoffer v. Wightman, 5 W. 205.
150 Partirion In OrpHans’ Court.
judgment is recovered upon the recognizance, does a lien arise,
the lien, not of the recognizance, but of the judgment.* The
share in the recognizance of each heir becomes a lien on all
the interest of the principal recognizor in the land, and not
merely on the share, formerly of this heir. Thus, if one of
four heirs accepts the land, the share of A., one of the other
heirs, in the recognizance is a lien not merely on the undi-
vided fourth, which belonged to A. prior to the partition, but
upon the recognizor’s integral interest in the land.”
Cessation of lien.
The lien of the recognizance is not affected by the taking of
other securities, such as a bond, or a judgment. The lien dates
back to the giving of the recognizance, and not to some later
time at which a judgment on the accompanying bond may be
given.® The recognizance needs no revival, or a judgment, to
prolong its lien. It is subject to no statute of limitations.”
It is liable to discharge, however, by judicial sales.“* The
widow’s dower is not discharged by judicial sales, except
possibly when it is caused by her own execution for arrears due.
In that case it will be discharged.” And a sale by an assignee
for the benefit of creditors, under an order of the Common
Pleas, will not discharge the lien of the recognizance if the
cognizee was in no way made a party to the order.”
Calculation of amounts due parties.
In order that there may be in the records of the partition
proceeding, distinct evidence of the amounts due to the several
heirs without naming these heirs and the amounts in the recog-
nizance, or, in order that if the parties desire, their names and
amounts may be inserted in the recognizance, the first section
of the act of April 12, 1855,” directs that ‘“ Hereafter, in all
64 Allen v. Getz, 2 P. & W. 310;
Allen v. Rieesor, 16 8. & R. 10.
65 Cubbage v. Nesmith, 3 W. 314.
66 Leibert’s Appeal, 119 Pa. 517.
Hence, a mortgage created between
the giving of the recognizance, and
the recovery of judgment on the
bond, is postponed to the recog-
nizance.
67 Ankeny v. Penrose, 18 Pa. 193;
Léibert’s Appeal, 119 Pa. 517.
68 Gilmore v. Commonwealth, 17 &.
& RB. 276; Cubbage v. Nesmith, 3 W.
316. Vide Law of Liens.
692 Law of Liens, 836; Mentzer v.
Menor, 8 W. 296: Fisher v. Keen, 1
W. 259; Lauman's Appeal, 8 Pa. 473.
70 Hancock’s Estate, 1 Kulp, 85.
71 Dodson’s Estate, 6 Pa. C. C. 617.
722 P. & L. 3378. In Barkley v.
Adams, 158 Pa. 396; Barkley’s Ap-
peal, 2 Mona. 274, the clerk made
the calculation, and it was confirmed.
In Meyer’s Estate, 179 Pa. 157, no
calculation was made or filed. The
parties had agreed that certain pur-
parts should be sold, and the pro-
ceeds applied to the heirs who took
Srcurtry ror Varuation Money. 151
cases of partition in the Orphans’ Court, where said court shall
order and decree any party taking any portion of the estate at
the appraisement, to give any recognizance for the payment of
any part of the valuation, it shall be the duty of the clerk of
said court, in all cases in which an auditor has not been, or may
not be, appointed by the said court, for the purpose of ascer-
taining advancements, and making distribution among heirs
and parties in interest, to make a calculation exhibiting the
amounts due the respective parties in interest, and to record
said calculation, when approved by the court, upon the docket
of said court, as a part of the proceedings in each case, for
which services the clerk shall be entitled to a fee of one
dollar.”
Satisfaction of recognizance — Section 50, act of March 29, 1832.
The fiftieth section of the act of March 29, 1832,” enacts
that “Where a recognizance hath heretofore been, or shall
hereafter be taken in any Orphans’ Court, on the acceptance
of the real estate of a decedent at the valuation or appraise-
ment thereof, as hereinbefore provided for, and the same or
any part thereof shall be satisfied or paid to the person or
persons interested therein, his, her or their agent or attorneys,
any such persons so having received satisfaction of the amount
coming to him, shall enter an acknowledgment thereof upon
the record of such court, which shall be satisfaction and dis-
charge of the said recognizance to the amount acknowledged
to be paid; and the recognizance shall cease to be a lien on the
teal estate of the conusor to a greater amount than the prin-
cipal and interest actually remaining due.”
Satisfaction — Penalty for not entering.
The fifty-first section of the act of March 29, 1832," directs
that “If any person who shall have received satisfaction as
aforesaid, for his claim or lien secured by such recognizance,
shall neglect or refuse to enter upon the record his acknowledg-
ment thereof, upon the written request of the owner of the
premises, bound by such recognizance, or of any part thereof,
or of his legal representatives or other persons interested
no purparts, and only after this had liens, and marshal them, to ascer-
been done, could the amount of the tain and apportion owelty and dower,
recognizances be fixed. In Sutton’s and also to state the costs and ex-
Appeal, 112 Pa. 598, an auditor was penses of the partition.
appointed after the election of the 731 Br. Purd. 609.
heirs to take the land, to ascertain 741d.
152 Partition In Orpuans’ Court.
therein, on tender of all the costs for entering such acknowledg-
ment, within sixty days after such request and tender as afore-
said, such person, for every such default, shall forfeit and pay
to the party, aggrieved, the sum of $50, absolutely, and any
further sum not exceeding the amount by such person received,
as shall be assessed by a jury on a trial at law; or the Orphans’
Court, on due proof to them made, that the entire amount due
to any heir, legatee, or distributee, shall have been fully paid
and discharged, may make an order for the relief of such per-
son from any recognizance or other recorded lien, which order,
being certified to the proper court, where such lien may appear,
shall be entered on the records, and shall inure and be received
as a full satisfaction and discharge of the same.”
Sections 22, 23, act of April 26, 1850.
The twenty-second section of the act of April 26, 1850,”
enacts that “The provisions of the act of Assembly, passed
the 31st day of March, 1823,” entitled ‘An act relating to
mortgages,’ shall extend and be applicable to all cases of any
legacy or legacies, for the payment of which any real estate
within this commonwealth is or may be chargeable, and to all
recognizances in the Orphans’ Court of any county of this
commonwealth, which are or may be liens upon any real estate
within the same, in as full and particular a manner as if the
several provisions of said act were here repeated at length.”
The twenty-third section is as follows: “The proceedings for
the discharge and satisfaction of the lien of any such legacy
or legacies, or any such recognizance, shall be the same as
those prescribed in the act referred to in the preceding section
in reference to the satisfaction of mortgages, except that with
regard to the aforesaid recognizances, the proceedings shall be
had in the Orphans’ Court, upon whose records the said recog-
nizances are found.”
Procedure and decree.
The decree, or order, for the discharge of the lien of the
recognizance, will, if made after due notice, be conclusive, in
any subsequent action on the recognizance.” If due notice
was not given, the decree would probably be void, even col-
laterally. At all events, the want of such notice would be
751 Br. Purd. 610. of mortgages when the holder has
761 P. & L. 1590; 1 Br. Purd. 656. died, or is out of the State.
This act provides for the satisfaction 77 Hancock’s Estate, 1 Kulp, 85.
Srecuriry ror Vatvuation Money. 153
cause for opening the decree. The fifty-first section of the
act of March 29, 1832, authorizes the court, “on due proof
to them made” that the recognizance has been paid, to order
the premises or person liable discharged, but it does not specify
the mode of giving notice. The mode provided in the fifty-
second section of the act of March 29, 1832,"8 must be followed.
If the person to be notified resides beyond the county, personal
notice, or, if the court think that not reasonably practicable,
notice by publication in one or more newspapers is necessary.
If, therefore, the court orders notice to be published for three
weeks in one newspaper, and copies of this publication to be
mailed to the party, and the evidence, in the proceeding to open
the decree, shows only publication, but not mailing, the court’s
decree will be a ratification of the departure from its order
with respect to mailing, which was in excess of the require
ment of the statute,” and the decree will not be invalid, as re
spects the notice. Under the fifty-first section of the act of
March 29, 1832, the discharge of the lien of the recognizance,
by a judicial sale of the premises, is a reason for the purchas-
er’s applying to the court for an order for his relief from the
recognizance.
782 P. & L. 3336. The twenty- 80 Hancock’s Estate, 1 Kulp, 85.
second and twenty-third sections of The court declined, nineteen years
the act of 1850 did not change the after the decree relieving the land
law as to notice, except when the from the recognizance, to open the
facts are the same as described in decree, finding due notice to have
them. Hancock’s Estate, 1 Kulp, 85. been given and proper cause shown.
79 Sankey’s Appeal, 55 Pa. 491.
154 Partition in OrnpHans’ Court.
CHAPTER XVII.
REMEDIES FOR OWELTY.
Actions for the owelty.
Formerly, the action of debt! lay; now, that of assumpsit?
lies upon the recognizance. A very frequent action, however,
has been the scire facias.* Notice, in either action, to the
terre-tenants is appropriate.* When the land has passed from
the original owner, charged with the lien, whether, as in the
case of the widow’s third, created by law, or by the recog-
nizance or other securities which the Orphans’ Court has re-
quired, and the object of the widow, or of the person entitled
to a share of the owelty, is to enforce the payment of it out
of the land, it is not necessary to bring an action on the recog-
nizance, or other security. The action can be assumpsit,° or
debt,® against the terre-tenant, or against the purchaser at the
partition sale, with his grantee named as terre-tenant.”
The
judgment recovered against the terre-tenant is generally de
terris only, and not. against him personally.®
Suits on recognizance — Plaintiff.
The commonwealth is properly the conusee in the recog-
nizance, and, therefore, the legal title to sue resides in her.
It is not necessary to suggest
1 Beyer v. Reesor, 5 W. & S. 501;
Beatty v. Smith, 4 Y. 102; Good v.
Good, 7 W. 195; Blanchard v. Com-
monwealth, 6 W. 309.
2Donaghy v. Gill, 130 Pa. 296.
3 Ebbs v. Commonwealth, 11 Pa.
374; Allen v. Reesor, 16 S. & R. 10;
Kidd v. Commonwealth, 16 Pa. 426;
Stewart v. Martin, 2 W. 200; Reigart
v. Ellmaker, 14 8. & R. 121; Bailey
v. Commonwealth, 41 Pa. 473; P. &
R. R. R. v. Commonwealth, 2 Penny.
76; Evans v. Ross, 107 Pa. 231;
White v. Commonwealth, 110 Pa. 90.
4Nichols v. Rummel, 3 P. & W.
195; Bailey v. Commonwealth, 41
Pa. 473; P. & R. R. R. v. Common-
wealth, 2 Penny. 76.
5 De Haven v. Bartholomew, 57 Pa.
126; Shelly v. Shelly, 8 W. & 8. 153;
Diefenderfer v. Eshleman, 113 Pa.
305; Pideock v. Bye, 3 R. 183; Kline
the name of any use plaintiff,
v. Bowman, 19 Pa. 24; Shertzer v.
Herr, 19 Pa. 34.
6 Karstein v. Bauer, 4 Penny. 366;
Heist v. Baker, 49 Pa. 9.
7 Hise v. Geiger, 7 W. & 8. 273. A
bond and mortgage given by the pur-
chaser had been satisfied by the ad-
ministrator. The suit was brought
by those entitled to the principal of
the widow’s third. In Unangst v.
Kraemer, 8 W. & S. 391, Rogers, J.,
held, that the purchaser at the par-
tition sale, or his vendee who gave
bond for payment of the owelty,
ought to be defendant, with the
present owner as terre-tenant.
8 De Haven v. Bartholomew, 57 Pa.
126; Unangst v. Kraemer, 8 W. & S.
391; Shelly v. Shelly, 8 W. & 8. 153;
Pideock v. Bye, 3 R. 183; Kline v.
Bowman, 19 Pa. 24; Karstein v.
Bauer, 4 Penny. 366.
Remepies ror Owe ry. 155
though convenience requires the name of the one who sues
to be suggested of record. This is constantly done, when the
suit: is by less than the whole number of claimants.® The suit
may be by and for all the heirs,” or for any less number; for
four, ¢€. g., out of five, for one.” The legal title of the com-
monwealth to sue is enough to support the action, although
an heir is named as use-plaintiff, whose right has passed from
him to an assignee for the benefit of creditors.47 The widow,
as all other persons entitled to the money, or interest thereon,
secured by the recognizance, sues on it.
Plaintiff — Suit for widow’s third.
The principal of the widow’s third is payable to the heirs,
or, they dying, to their administrators or executors. It would
follow that the heirs or their legal representatives should sue
for the recovery of their shares of the principal, and that they
may do so, is incontestable. When land has been sold in
partition, it is not unusual for the administrator of the de-
cedent, or other trustee who makes the sale, to take bond or
mortgage, or other security payable to himself, for the
principal of the widow’s dower, and in such a case it has been
a question whether the action upon the bond, or mortgage,
should be by the administrator of the decedent, or by the heir,
or, he being dead, his administrator. In Hise v. Geiger,” the
money having been paid without suit to the administrator
named in the bond and mortgage as payee, he had satisfied
them. He never paid the money over to the heir. The heir,
it was held, could sue on the statutory lien. “ Why,” asks
Rogers, J., “pay it to the administrator, who is but the in-
strument of the court to effect the sale, and who has no power
to change the terms prescribed by court, much less to alter its
decree by which the purchaser is ordered to pay the one-third
® Kidd v. Commonwealth, 16 Pa.
426.
10 Bailey v. Commonwealth, 41 Pa.
473.
11 Kidd v. Commonwealth, 16 Pa.
426.
12 Commonwealth v. Lightner, 9 W.
& 8. 117.
13Id. “If,’ says the court, “the
defendant were vexed by the instiga-
tion of an intruder, be might rule
him to file his warrant, and that
would be protection enough.”
14 Evans v. Ross, 107 Pa. 231; Good
v. Good, 7 W. 197.
157 W. & S. 273. Rogers, J., added
that “if it should subsequently ap-
pear that the money paid by the
purchaser was used by the adminis-
trator [i. e., for debts of the de-
cedent], it may constitute an equi-
table defense.”
156 Partition in OrpHans’ Court.
of the purchase money to the widow and heirs.” In Emerick’s
Estate," Penrose, J., held, that neither the administrator of
the decedent, nor, he being dead, the administrator d. b. n.,
had a right to receive payment of the principal of the dower,
except as agent or attorney, but as he submitted himself to
the court, ordered him to pay it over to the administrator of
the deceased heir. On the other hand, in Unangst v. Kremer,”
the right of the administrator who made the sale is maintained.
“There is a convenience in this form,” says Rogers, J., “as it
supersedes the necessity of bringing as many suits as there are
heirs. * * * Nor do I perceive any insuperable objection
against an action either by the administrator or the heirs, for,
whether the one mode or the other be adopted, it is the same
to the defendant, who will be protected in either case against
another action.”
Conversion.
After the giving of securities for owelty when land is taken
by an heir without sale, or for the purchase money when
land is sold, the interest of the parties in these securities is
personalty, and passes as such, on the death of these parties,
not to their heirs, but to their personal representatives,’® and
is distributable to those who take the personal estate. Thus,
the heir being a minor, when the land was taken at the appraise-
ment by another heir, on her subsequent death during minor-
ity, the guardian settled an account, embracing the owelty
collected by him. The balance was paid over to the admin-
istrator, and was then distributed to next of kin of the half-
blood, as personalty, in preference to remoter of kin of the
whole blood.® The exception made by the forty-eighth sec-
166 Pa. C. C. 641; 45 Leg. Int.174. Martin, J., in Shurlock v. Smith, 2
The heir’s interest in the widow’s
third is like his interest in the
owelty which is presently payable.
Snyder’s Estate, 1 Pears. 430. Cf.
Hollinger’s Estate, 11 L. Bar, 142.
178 W. & S. 391. In Brooks v.
Smyser, 48 Pa. 86, an action by the
executor of the survivor of two ad-
ministrators on the mortgage for the
principal of the widow’s third was
justified. It is said by Agnew, J.,
that Hise v. Geiger, 7 W. & S. 273,
was overruled the next year in
Unangst v. Kraemer, 8 W. & S. 391.
D. R. 347, sustains an action by the
administrator. See note to this case.
18 Wagner’s Estate, 2 D. R. 238;
McCune’s Appeal, 65 Pa. 450; Ebbs
v. Commonwealth, 11 Pa. 374;
Pauley v. Pauley, 7 W. 159; Share
v. Anderson, 7 S. & R. 42.
19 McCune’s Appeal, 65 Pa. 450;
Barley v. Zeigler, 16 W. N. C. 218;
Kann’s Estate, 69 Pa. 219; Scott’s
Estate, 137 Pa. 454; Wentz’s Ap-
peal, 126 Pa. 541; Hay’s Appeal, 52
Pa. 449; Walker v. De Haven, 50 Pa.
101.
Remevries FoR OwE tty. 157
tion of the act of March 29, 1832, in the case of a married
woman, heir, is considered elsewhere.
Successive suits.
There may be as many suits as there are parties protected
by the recognizance. After one heir has recovered,” another
may sue.” Thus, an heir may sue for his share of the owelty
presently payable, and subsequently the widow may sue for
an installment of the dower.” The widow may successively
sue for installments of annual interest falling due and being
unpaid.”
Defenses — Mistake in area, etc.
In an action on the recognizance, securing a sum of money,
it cannot be shown by the defendant. that there was an over-
estimate of the area of the land; that, e. g., it was estimated to
contain 227 acres, and, on that assumption, it was appraised
at $7,885.25, whereas it really contained but 206 acres 97
perches. It cannot be assumed in the Common Pleas, on the
trial of the suit on the recognizance, that the inquest intended
each acre to have the same value, so that the proper rectifica-
tion of the recognizance would be there impossible. Besides,
it must be assumed that the parties intended that the recog-
nizance should represent the absolute liability of the accepting
heir, and not one subject to reduction, should a subsequent
survey expose a mistake in respect to the area.* A rectifica-
tion of the recognizance, five years after it was entered into,
by the Orphans’ Court, so as to make it for a larger sum than
it originally was, because of the discovery that the area of the
land was underestimated, would be invalid as against the ac-
cepting heir, or terre-tenant, unless he was, by proper notice,
made a party, and more than the original sum mentioned in
the recognizance could not be recovered from the terre-tenant,
not shown to have been thus notified.” There can be no
abatement from the sum for which the recognizor is liable,
in the action on the recognizance, because of any improve-
ments made on the premises, or any taxes paid on account of
them, prior to the partition. If these are a proper allow-
20 Nichols v. Rummel, 5 W. 195. Interest on the annual interest will
21 Kidd v. Commonwealth, 16 Pa. be recoverable.
426. 24 Nichols v. Rummel, 3 P. & W.
22 Good v. Good, 7 W. 197. 195
23 Stewart v. Martin, 2 W. 200. 25 Galbraith v. Galbraith, 6 W. 112.
158 Partition 1n Orpuans’ Court.
ance, they should be called to the notice of the Orphans’ Court,
before it fixes the amount of the recognizance.”
Defenses — Loss of title.
If the recognizer should lose possession of the land, or of
some of it, under a title superior to the decedent’s, this would
be a total or proportional defense to the recognizance. If
one of the heirs held the land adversely to them, at the time
of the partition, by grant or by adverse possession so long
continued as to make a title, and he was not so connected with
the partition as to be now precluded from asserting his right,
and his heirs, at his death, continue the adverse possession,
they can, when brought in as terre-tenants, in the action on the
recognizance, set up this adverse possession as a defense. So,
the surety on the recognizance might defend on the same
ground.”” The sum-
mons is issued, of course, by the prothonotary upon a praecipe
12 P. & L. 3599. inquest was held invalid in the latter
2 Partition, 65. case,
3 Wetherill v. Mecke, Bright. 135; 4 Wetherill v. Mecke, Bright. 135.
Cowan’s Appeal, 74 Pa. 329; Bellas 5§ 82, act June 13, 1836, 2 P. & L.
v. Dewart, 17 Pa. 85. A later agree- 3600.
ment to substitute six persons for an
Proceepines to First Jup@Ment. 283
of the plaintiff or his counsel. The praecipe should state the
names and descriptions of the parties and accurately describe
the premises of which partition is sought. It should generally
be full enough to enable the summons to be made out without
external aid. That any of the parties are minors should be
stated, and whether they are over or under the age of fourteen
years. If the minor has a guardian, he is named as “ A. B. by
his guardian C. D.” Ifa party is a married woman, her hus-
band is joined with her; thus, “ L. M. and K. M., his wife, in
right of the said K. M.”° The praecipe may state, after describ-
ing the land, that the plaintiff and the defendants “ together
and undivided do hold” it.”
The summons.
Only a single form of summons prevails in Pennsylvania, in-
stead of the several forms which formerly obtained in England.®
It commands the sheriff to summon the defendants to appear
before the court to answer the plaintiff of a plea, “ wherefore,
whereas the said plaintiff and said defendants do hold together
and undivided all that certain lot or piece of ground * * *
with the appurtenances, they, the said defendants, deny that
partition thereof be made between them, according to the laws
and customs of this commonwealth and the statutes in such case
made and provided, and the same to be done will not permit,
unjustly and contrary to the laws and customs and to the stat-
utes aforesaid, as is said,” etc. This is a sufficient exhibition
of the cause of action. It is not necessary to recite the source
or nature of the titles of the parties.? It is not necessary nor
proper for the court to decide on the title of the parties, before
6 Miller on Partition, 65. In Girard
Life Ins. Co. v. Farmers & M. Bank,
57 Pa. 388, the precipe, summons
and publication of notice named the
parties as “ Wilder and Clara,
his wife,” the husband’s christian
name being omitted. The return of
nihil habet and publication was made
by the sheriff, and the parties did
not appear. Gag dena wna 6 enees 112
when preferred heir declines . 21... .. ee cece cece eee ee eee eaee 112
when there are several purpartS ......... ccc cee eee e ec eee eeees 112
when land lies in different counties . ....... 0... cece eee eee eee 114
THC AROODIAUICE « & a sake ere Bee eee HAE eS Oe ee oe ES Oe T21
right of lien creditors with respect to .......... eee eee cee eee 122
rule on heirs, to accept or refus@ : 2.x. csacavessvaneeviaawns 100, 109
WOES OE oe. wee SK wea Sa HOG e EEE 8S OEE Cea 104, 106
16 SHOW CHANGE AGRINGE BAIE 6. 6 ccc cp meme ce ee eaee dyes mane ces 101
day nated for HOGODHTE « can caceeeveensaduen ee enerees ees 102
pervies Of 44 Ga ces eucmadedearpeorawbenee eu aoles oo 102, 109
WO NOTE) ok Sete ge gee kee atiede UA diggs awa k awe 104
DY! WHOM yo; a: do Ye Soeeatera sg, Saaead wear ehapede-> Aiengiels weGlaea Era ieens 104
heirs, not served with rule, absent ......... 0... ee ee ee ee eee eee 106
not permitted, after abandonment of partition ............... 107
WHEN T00 JAE 6.0 ocaieda ce hn t@ietwane cee wedeasres eoeiae es 108
diminishing valuation by agreement . ......... cece ee ee cece eens 107
agreement as to who shall take . 21.1... see ee ee ee ee eee eee ees 107
Walver Of Priority’ « o .acwscs vam ons y ue eda er Wee eee aew nee Ne 108
subsequent refusal to give recognizance ..... 6. cece eee eee eens 146
at daw, Teht Of 4.2 mweseesawen ss edi deaeerss sealer a oeg sg 312
Wiethod. (Of .. sce s es Wee Fee OE Meee Tale wegine eewisaie-s 310
bringing parties into COUrt . ..... cc ccc eee cee eee eens 313
rule to accept or refuse, form Of ......... 0c eee e eee ee eee 422
form: Of MOTE Of 6 asics cece es nan eee mat ned EP EM ETRY 422
THOS OE 6 SA we Rede aye Reh Te Gases eee See RRR TR RE 423
in equity, form of rule to accept or refuse .......-. sees rene eee 446
(461)
462 INDEX.
ACCOUNT: Page.
of trustee to make sale, Orphans’ Court.............cceeeseeeee 200
to make sale without inquest........... cece eee eee eee eceees 213
ERCEPELONS LO acs aie hy as toreereands od a aiaialoie ea ehee ae G Wits aaa 201
ACTS OF PARLIAMENT:
31 Hen. VIII., c. 1, partition at law ......... ccc eee ee eeee 249, 319
32 Hen. VIIL., c. 32, partition at law ............ 249, 269, 270, 319
8 and 9 William III., partition at law .........ccecee cece ee ceee 290
ACTS OF ASSEMBLY:
1722, May 22, § 22, partition at law...........cceeceeeeeeeeee 250
1764, March 23, inquest, Orphans’ Court .............. 65, 111, 140
1794, April 19, § 22, jurisdiction of Orphans’ Court, 1, 2, 60, 136, 140
1799, April 11, § 1, jurisdiction at law ........ 250, 263, 304, 313
1799, April 11, § 2, division impracticable ............eeeeeee 306
1804, April 2, sale of land, Orphans’ Court.............--- 95, 209
1806, March 28, jurisdiction at law .........cceceeeeeeees 251, 263
1807, April 7, § J, partition at law .............e0005 274, 281, 287
1807, April 7, § 2, summary judgment .............20000- 288, 291
1807, April 7, § 4, plea in abatement ..604 css eee eee e se eeews ees 293
1807, April 7, § 5, equal partition impossible ...............--- 307
1807, April 7, § 6, widow’s share in valuation ............ 134, 162
1807, April 7, § 7, fewer purparts than heirs .............. 95, 304
1807, April 7, § 8, rule to accept or refuse .........-. ee eee ee ee 108
1807, April 7, § 9, accepting land in different counties.......... 114
1808, March 26, § 2, sale of land in partition................-. 176
1821, Feb. 5, entering judgment ..............65 288, 290, 291, 305
1824, March 29, § 1, execution of deed, after sale ............ 199
1824, March 29, § 2, fixing return days of sale ............4.. S21,
1832, March 29, § 36, jurisdiction in partition.. 3, 39, 41, 42, 65, 222
1832, March 29, § 37, order of right to accept........ 110, 131, 189
1832, March 29, § 38, acceptance of purparts.. ...........46- 113
1832, March 29, § 39, division into fewer purparts than heirs.. 95
96, 110, 112
1832, March 29, § 40, rule to accept ...........-.-..00-- 100, 102
1882, March 29, § 41, widow’s share in appraisement.. 134, 136, 1387
1832, March 29, § 42, widow to show cause against sale.. 100, 175
1832, March 29, § 43, concentration of widow’s share...... 183, 187
1832, March 29, § 44, land in different counties .............. a
1832, March 29, § 45, election to take at appraisement.... 118, 114
1832, March 29, § 46, remaindermen ...............6-. 41, 46, 115
18382, March 29, § 48, husband’s right to wife’s owelty.......... 168
1832, March 29, § 49, ascertaining liens on purparts ...... 204, 210
1832, March 29, § 50, satisfaction of recognizance ........ 151, 153
1832, March 29, § 52, notice of inquisition ........... To, 102, 153
1832, March 29, § 58, notice to guardian. .. 2.4... ec40es-4 ciaes 76
1832, March 29, § 55, issue to Common Pleas. ........ 48, 62, 63
1832, March 29, § 57, petition; citation ...........00.ee eee 49, 104
1832, March 29, § 59, appeal .......cc cc eccoee rc eseeecres 236, 246
1833, April 8, widow’s sharé:in: land. s.64 0 eecnad oe ee wane wanes 91
1833, April 8 § 16, advancements ....... 0... cece eee eee e eee 214
1834, Feb. 24, § 19, payment of purchase mouey into court..... 207
1834, Feb. 24, § 41, investing proceeds of sale ................ 206
1834, Feb. 24, § 42, discharge of lien of decedent's debts... 211, 212
1834, Feb. 24, § 48, security, before making sale.............. 180
1834, Feb. 24, § 44, trustee to make sale ................0 00s V7
1834, Feb. 24, § 45, refunding bonds ............. cc ce ee eee eee 205
1834, Feb. 24, § 46, shares of life tenant in owelty ............ 189
1834, Feb. 24, § 59, payment of legacy ......... ee eee eee eee 59
INDEX. 463
ACTS OF ASSEMBLY — Continued: Page.
1835, April 11, § 1, life estates .......... 36, 44, 268, 270, 279, 340
1835, April 11, § 2, division of land at law.............ee sees 308
1835, April 11, § 3, costs in partition ............ cece eee eens 329
1835, April 11, § 4 notice of inquisition ........... ccc ee ee eee 301
1835, April 14, § 2, naming parties ...............0005 49, 53, 75
1886, June 18, § 79, amicable partition .............0 cee ences 282
1836, June 13, § 80, land in two counties ............c ee ee eee 287
1836, June 18, § 86, service of Writ ....... ccc cece ee eee ee eee 286
1836, June 13, § 87, default in appearance .............ee00 ee 287
1836, June 14, § 15, jurisdiction in cases of trust ............-- 337
1837, April i partition in District Court .................2.. 2
1840, April 18, § 4, partition in cases of testacy ........... 11, 26
1840, June 3, § 1, contingent interests in land ...... 271, 272, 340
1841, May 5, § 14, allotment of purparts ................ 310, 313
1842, April 5, § 9, contingent interests in land .......... 271, 340
1842, April 5, § 15, appeal from judgment quod partitio fiat...... 297
1843, Feb. 24, § 8, partition solely to set off dower...... 27, 28, 40
1844, April 6, payment of owelty by nonresidents ............... 133
1845, March 17, appeals, from Philadelphia in equity... ....... 365
1845, March 17, § 3, partition in equity ................. 333, 334
1845, April 15, sale, on refusal of heirs to accept.............. 98
1846, April 21, § 1, concurrent jurisdiction in partition.. 2, 251, 338
1847, March 13, § 1, partition, decedent owning fractional in-
NOTRE 3. ved ood Ran REE Rada RARE Wee da Reka Owe 25, 26, 240
1848, April 11, § 6, property rights of married women......... 170
1849, April 9, § 4, execution of deed, after death of trustee.. 198
1849, April 9, § 8, recording inquisition, etc................. 331
1849, April 9, § 16, obtaining possession of land sold ......... 200
1849, April 10, § 10, jurisdiction in cases of testacy............ 12
1850, April 25, § 2, rule to accept .......... cee eee eee 101
1850, April 25, § 10, partial partition ................... 219, 290
1850, April 25, §§ 22, 23, discharge and satisfaction of recogni-
GANCE isis. oi Gis krs is SAO MR RANA e MOE Deke ee ee 4 daraes 152
1850, April 25, § 27, partition docket .............. 0... eee eee 330
1852, May 4, § 25 AMENAMENTS, 5 sien cise siines sen. base a cs eens Basen 279
1853, April 18, § 2, sales of land in equity ................005. 359
1853, April 23, exoneration from lien ........... cece eee eee 345
1854, Feb. 20, lands in several counties ...............005 263, 287
1854, Feb. 24, land in different counties ...............0005. 4, 5
1854, May 8, partition in equity ....... 6. ce eee eee eee eee 333
1855, March 27, § 4, commissioners to make partition.......... 65
1855, April 12, § 1, owelty’ ...i68 son cess vee tas eeoveeeceeeee a 150
1856, April 17, sheriffs’ inquests’ compensation ...............- 222
1856, April 17, § 1, land lying in different counties.......... & 6
1856, April 22, § 3, indexing of liens .........-..-+- +e ee ee eee 148
1856, April 22, § 10, bidding above valuation ............ 123, 314
1857, March 14, partition in equity ...-....--...-.04- 333, 334, 352
1858, April 12, § 1, amendment ......... eee cece eee ee ee eee 279
1859, April 13, equity partition in Allegheny county ............ 3834
1863, April 11, § 1, account of trustee who makes sale......... 200
1863, April 22, sales in partition, 1, COUT cand cee ewc own se ends 359
1864, April 27, § 1, costs in partition ....... 6... eee ee eee eee 222
1865, March 22, partition when party is VA en vce coed 68 43
1865, March 27, § 1, payment of proceeds of sale into Orphans’ si
COULE @ % were bE EER ae bu eee tat ESTES NG SEAGATE AS 2
1866, May 17, § 1, enforcement of payment of owelty, Orphans’
GOurt: oa we. AE SSA EE SG Blbaies Caw Rwy wee Fa eR eRe 25 GOMES TO 171
1867, Jan. 7, § 1, concentration of widow’s dower ............ 183
464 INDEX.
ACTS OF ASSEMBLY — Continued: Page.
1867, Feb. 20, partition, when party is lunatic ...............6% 43
1868, April 28, § 1, paying proceeds of sale into Orphans’ Court, 208
1869, Feb. 26, when land comes from several ancestors.. 13, 27, 29
1869, March 30, § 1, land in different counties ............ 8, 9, 263
1869, April 20, dower, claimed as against will ........ 2, 14, 39, 340
1870, Feb. 26, partition in Luzerne county .............0-00 eee 243
1871, May 23, § 1, security for purchase money............... 209
USTL, “May: 285 -§- Dy GOSS. sis ace ccd ave Baa Cie duasapore vasa a Beavanes over Goiusl Sears 222
1871, May 23, § 2, action on security ........ cece ee eee eee ee 210
1871, May 28, § 3, purchaser’s recognizance a lien.............. 209
1874, May 14, § 1, land in different counties .............. 9, 264
1874, May 14, § 3, partition of coal rights .................... 243
1875, March 18, § 1, publication of notices ............-....065 13
1876, May 8, time of paying owelty ........... cece ee ee eee ~. 1381
1876, May 18, partition between living cotenants and heirs of
GOAG: COUCIAIG fa.) aicrSns.giteses cesta odnre send ele due ehh ac Oueitcinn pape ive. Qumien Toes Os 29
1879, May 1, § 1, number on inquest ..............eeee eee 67, 302
1885, July 7, jurisdiction in equity partition ...............000- 334
1887, June 3, § 2, suits by married women .................... 52
1889, May 9, § 1, jurisdiction in case of testacy .......... 14, 111
1898, June 8, married woman’s right to sue .............. 52, 53
1893, June 12, sale without inquest .............0ce cee ee eee 212
1893, June 16, partition in case of testacy .........c.c cece e eee 14
1895, May 22, private sales in partition ..............2-..005. 191
1895, June 24, rents allowed in partition ...............220000- 245,
1895, June 26, committee ad litem of lunatic .............0.005 343
1897, July 14, discharge of dower .........ec cece cece cece eens 187
1897, July 14, partition in equity .......... cece eee eee 336
ADMINISTRATOR:
agent to make sale in partition ........... cee cece ee eee eee V7
CAUSES: TOP TENOLING: «-sied éo.5.4 Hena-c4 egw os Fiestas + dleeeG OSs 178
form of refweal to make salé ps445 uveega os nyan eens Cone ed = 392
Sécurity tO be Siven. 2 siawees saw cv icon tesa neon ss ee anew ¥% 180
form of DOO ou. ccas cs teed cee nee cee ew Ree Ae O REE 393
liability: 60: iis cawise di.05 bcuseae iaaeaess 181, 203
compensation for making sale .........-.0- cece cere cece eee 222
form, of réeturti Of Sale 2... eis cee tinea ees meee eames 393
application for auditor to distribute proceeds...............5 204
of deceased heir, payment of proceeds of sale to... .........0 00 ee 207
sale by, for debts, two years after letters granted .......... 211, 212
ADVANCEMENT:
effect on right to notice of inquisition ......... 0... ee ee eee eee 73
amending recognizance on account Of .........0e ce eee eee 145, 242
how ascertained in. equity sccsccciedeas.kaccwuw en saa 358, 354, 366
ascertained by clerk of Orphans’ Court.............0. 0005 150, 151
how otherwise ascertained ............ cee eee eee ee teens 205, 242
to recognizee, defense to recognizance ....... cee eee e ee eee eens 159
BtAtwtOry PFOVIRION. COMCETRING « ncn sda xconnesen ser eee eeGs eee © 214
application of, as respects realty and personalty ................ 214
sustaining plea of non tenent insimul...... 4 Dashlih ane boca taieaie antg tthe eee 216
estimating, ‘value: Of <4. scics cc nwa aco shy artnet wane y gallows es lodase as 216
effect of release accompanying «6 4444600804 we dened eeveaeues 217
CO WIdO Wolpe a Geeks paiegepe ns oa he we ie BSE BE KA SORE EASES 217
right of widow to take advantage Of 24.) s000005 006.064 nas awe OO 217
debts ‘treated, AS sacs cc sewn odua§ oe os 6 eoaedenva Abs Seas 080 217, 367
INDEX. 465
ADVERSE POSSESSION: Page.
of premises obstacle to partition...............cc ce ee cee 31, 63, 347
of part of premises ....... 0.0... cc eee eee eee GREE S B44 Fen 35, 221
by trustee, against cestui que trust...... ccc cc eee e eee aee 338, 349
ADVERTISEMENT:
of Sale) at law shcisas wee nots esns caesde os Queedea Ooo aieulionte a & 320
TM CQ UIE aiege: setesageg s Ciashea te a8 Bai ew ola a hoavele veiled ee Gone 337
AFFIDAVIT:
that parties are unknown, form ............... cece cece eeeee 401
of notice of inquisition, Orphans’ Court, form.................0. 380
of publication of notice, Orphans’ Court, form ..............0006 380
of publication of suMMoDS............. ccc c ee ee ee eee eecseaee 403
of service of rule to accept or refuse. ........ cc cece cece eee cece 423
ALIAS:
INQUCSE *saniriin se pes daralainale aaa e eos eh ale eaeulawe Rake 62, 66, 87
rule to accept or refuse ......... ec ccc cece cece eee eees 107, 130
order to sell, Orphans’ Court ....... 0... ccc cece cece cece cence 193
LC DAW Si sass hare ca anecen uh ie Syke Grslern OS Savard weal ierdee ec ams wand 322
breve de partitione faciendd ....... 6. ccc ccc cece twee eens 299
citation, fOrM.Of award. Of cic ck sens tice ot ee aa wee cea gee es 372
form-of Teturn Of o0 5. 4ydsnw sae wae aay Gebes LN EDEB ESS dee 6 872
ALIENEE:
of widow, right to begin partition ........... 0.0... e eee eee ewes 389
of heir, right to begin partition ......... 00.0... cc cece eee ee eee 42
of heir of heir, begin partition ......... 0... 0. cee ccc ee ee erences 42
mame Of; 1 PEUItIOD 6s e sled iaueread Searetee dines 6-4 8 lan Ee Sig PALER RR OED 360
to account of trustee to make sale, Orphans’ Court.............. 201
EXECUTOR: ,
40 Make sale oo. swaless ssa Shee Wigs Hee ses BORE da aneeane ae Haee 177
Hieht, bo make sale: ox¢ vs nene eee s eee 44s Hi RWS A PERE BOO ROSS LTT
couse for preterniliine <4 «26044055 4654 0R 7 4 45 Ess 8 RA RR 178
seourity tio De ive Dy sae hak exes RRA A Seek Oe eee ee eaee 180
compensation for making sale . .......-... eee ee ee ee eens 222
EXEMPLIFICATION:
of partition proceedings « cas esas bene acs dea ve asa denn Peak caw s 4
EXEMPTION:
claim of, in distribution of proceeds of sale, Orphans’ Court..... 203
F.
PINALI®DY OF PARTITION: ooo ceeds ce siecesece ae divas. a aceiauenn aaa. 329
FINE:
reason for reducing r@cOSnizanee . ccs cece sc apege ae veaa oe Hwa OS 146
FISHERIES:
mention of, in petition for partition ........... cece eee eee eee 55
INDEX. 475
FORMS IN ORPHANS’ COURT: Page.
petition for partition . 01... . cee cece ee eee cece eee 369, 370
ADSWEr tO PetiHON, wv 6 scare Sie aes we da eek 6 Hae ne ae mie wen 3873
Gemurrer tO Petition 4. ssceeccs S56 eek heed bnew b wo wrecd 0's ween 4 Hae a 373
FECUCH: LO CM atON, . -eusiacseveinbere ads dine Ca eS alee dla deeatckdg ee Heese aloe 372
AWAEG Of CLS CHEAT ON io svice occ pianssd cin angers ace sisi vomits auiea @auane 3872
Teturn ‘to. Gigs: citation. vse. ses as eu sus bee Galen s cata ce eee hows 372
@Ward Of THQUEST << bis y-ole: Wet o es HER Sawoenewien ie SON ema Bawlenaaan Bio
petition to amend petition . 2.1... ... ci eee eee eee eee eee 3874
order allowing amendment ......... eee cece ee tect tee aee 3875
WIE, CO. COMMISSIONETS: 2g edused seule sas Bies v.ase Avencheeece eraesialns Oak nab © 375
Wit. Of INGUCSE... 6 ince daw 4 caw ed Saas OGG wd ow gate 's gar mislonslels 376
DUCES 0 Tees cee a ares ok eRe bene wees cA e Gee ewe hen ee x RMS 371
petition to set aside award of inquest ........... 0.0. ce cece cece 377
oath of commissioners . 11... . eee ee ee ee teen ences 378
acceptance of notice of inquisition . .......... eee eee eee ee 379
notice of inquisition, by publication ............. 0.000. cee 3879
affidavit of notice of inquisition . ........ 0.0 cc eee eee eee 380
Publication Of MONICe 2 acccceeck ds dad caa ewan oss dae ewe ee eR 380
published. notice of Inquisition .o.ce6-- cies boas cosy an wend nen s WEY 380
moties ly COmTISSIONeTS . 2. cadeoes4sGn 9044 KOSS OG MORE ee RE 381
return Of COMIMIISSIONETS 4 4 2k 5a SHON 05 4 HAE EA hee Oe OER ORES 881, 383
return.(Of IMqQuest: 2 2. scales Waa ware g § sme e eRe es Be Gad e's cores sears 3883
return of writ of inquest .......6..c cece cece ee ceceeeerones 384
return, when allotment is made. ......... cece ee ee ce eee eee 385,
COUBPHIAHON OF TAQUISINIOD . av +ceees osu Hees wAe eee PEE aw RR REA 3886
petition for rule to take or refuse at valuation .................. 386
grant of rule to take or refuse ..... 0.0... eee e eee eee eee 387
published notice of rule to take or refuse ............2.... 00005 387
waiver of rule to accept or refuse .......... 0. cece eee cee eee 388
acceptance of notice of rule to accept or refuse ................. 388
agreement for reduction of valuation . ......... 0... eee eee ee eee 388
decree for diminishing the valuation ........... 0.2... cece eens 389
bids for property above valuation . ........... 0... ce eee eee 889
award of land to highest bIddé? 2.44. 00¢000s0 nae sede eww de ene 390
Petition for Sales e.g 5 sees side stiayy Gini se Gener aud Sere aeeae Mie Guatone dS gas 391
Order Of S0le og ceagoes so Swedes Ree aed Oe Ree eRe ee ee 391
refusal of administrator to make sale ........... ccc eee eee eee 392
MOLCE OP SAlEY eas ve a egesb Ss ostglear eis WELLE EER EDD ea eae Reale wes 392
bond of trustee who makes sale ........... eee c eee ee ee eens 393
FSCUTH. OF SAIS 5 wk dew adtdd oc OHSS 6 WEES ES 4S 445M REE Re RES 393
eontirmaton. GE 816-2454 eae ss ce een rei Ree ases ea Saw deed © 394
petition for auditor to distribute owelty ............. eee eee 395
PeCORMIZANCE:. 6 wu. ae BRub ww Sede nee 2 oasg hk AGE eid ea SAY Wake 395
petition to enforce payment of owelty ......... 0. cece cece eee 396
notice of intention to procure appointment of guardian ad litem.. 396
petition for guardian ad Litem... 2... ccc ccc cee eens 397
decree appointing guardian ad litem ..... 1... ce cee eens SOT
petition for a resale of land ....... 0. cece cece teens 398
decree ordering a resale . 1.1... eee eee eee eee eet eee 398
FORMS IN PARTITION AT LAW ..... cece ce ee ene 400
precipe for SUMMONS . . 1. eee eee cee eee eee 400
WILE: eb. ey iesele fod aavaras eh PRO Re RAO HSS RS MEE Eo alite eRe ney A 400
affidavit that parties are unknOWN ....... cee eee eee ee eee eee 401
decree for publication of Summons .........--++ ee ee eeeee 401, 402
declaration of defendants’ wish to hold together .........+.++-- 402
sherifi’s teturn of SUMIINONS 2 us cccienae cece ta neee ee ee hae ERTS 402
petition for guardian ad litem ...... cece cece nee eee teens 403
order appointing guardian ad litem ......... cece eee eee eens 403
476 INDEX.
FORMS IN PARTITION AT LAW — Continued: Page.
bond of guardian ad litem ........50.e00- emia Ki os ROWAN 6 40 .. 404
affidavit of publication of SUMMONS . ... ee eee eee eee eee eee 403
Me clar agen: oii: Ges Vaca d SS Mela wee wie alo eas a Alp: oe aroheale tow alee ares 405
plea of Confession ... ccccs cece eect ee cnee scene eee seneee 406, 407
non tenent insimiul . ccc ccc c cee cree e cece cece eee en enene 407
suggestion of name of alienee . 21... cc cee cece ee ee re eee eeee 408
judgment quod partitio flat, act 1821 ....... cece eee ee ee ee eee 408
precipe for writ de partitione faciend@ .......6. cece ee ee een eee 410
judgment quod partitio flat, and appointment of commissioners.. 410
return of commissioners to make partition ...........00eeeeeeee 410
writ de partitione faciendd 1... ccc cece cece cee ete ee teen eee 410
Notice (Of, INQUISITION... os. eis aioe Gakw vc peeves ore Bard Se ge Bde G's aber eats 413
order OF peblicaliOy « o <4ese 44 do8s 64a 5 4 oe Me ods ORO Ew eee es 413
return of writ de partitione faciend@ ........... ccs e wees 413, 416
final judgment after return of writ de partitione facienda........ 420
return: Of Valuation. wuskidaeia caieni seas tas Gis S45 VERSIE we 421
confirmation of return to writ de partitione facienda ........... 422
rule to accept or refUSE 2... cece eee ee ce eee re ree eee eens 422, 432
TOEICE: Of gsi cer dais: 189, 360
share of costs of partition . 0... . ccc etc cere ete rete eeees 231
defendant in partition at law . 2... cece eect eee eee enee 278
LIMITATIONS, STATUTE OF: ,
not applicable to recognizance . 1.1... cece eee eee ee ee teen eens 150
LIS PENDENS:
partition already pending . .......-.e eee e eee ee eee eens 2, 31, 346
appeal from dismissal of first petition .......+....eeeeeee seen 31
notice to purchasers during proceedings . ..... 1... se eeee eee e eee 104
LUNATIC:
committee of, as petitioner, Orphans’ Court .......---+-+e+e+e- 43
plaintiff at law . 2... eee eee ee ce eee te eter teen ees 274
defendant at law . cc. ce cece cece ee eee eee cece teen tenes 275
service Of WYit OD 2... eee eee ee eee ee teeter eee en tennant 276
acceptance of land at appraisement ........+-+-+++-se esses 117
Py 343
LUZERNE COUNTY:
partition in... cee eee cee ee ee eee ee ete ene enn eee 243
M.
MARRIED WOMAN. See Wife.
MASTER:
in partition in equity . ..- eee eee eee ee ee eee etter tees 333, 335
functions Of oo cece cece ee eee ee teen eee e eee e ee eneees 333, 335, 355
allotment of purparts by . ..-ee cee ee ere e eee e er teereeeee 333, 335
determining the owelty . 1 --sseee essere e eter e reer te ss 333, Pe
report of . per heus ag eeartat apes Seema ie samt SS RIES Y YE aa6
action of court on ope er ree ae ce . aoe
re-reference Of TePOTt . «eee e cece cree tree ere treet tests a es
conveyance by «1 cee esse etre rete terete teen etree s sees es : See
sale by ch ARSE EN Cowes PF OT ERTS ONE ESE EE OF Geb BS RESO wes ae ae.
é 31
482 INDEX.
MASTER — Continued: ; Page.
bond by; before sale . ... bisecesevasnee cee beee beeen eae 336, 360
PEL UE eG ek SSID ER ESS GENESEE PA OG EASE EMER DE RESTS 454
SAlG. Of PULPALES “WH ve -siae sss rseshtahe ese brarduncas doniay Games eleva cna DAA s eos 2 336
appointed after decree quod partitio fiat............... 351, 352, 354
Order Of COUTE APPOINTING sie c cs ieiciice oe siseee oe aged s cease ee ees 355
dividing’ the premises .... seis idadiewa oo4 sins cee nda oo wee eee 354
allotting PUrparts: sq .keiviwe sy pseees caumwea nse eee ce REG E « + Aer 356
ascertaining: OWeltY «<0 4 sc gaxeou sd Ceca SE RARE Y ose eee 4666 SeS 356
directing mode of paying or securing owelty ..........-..2.000. 357
recommending sale . 1. wc. cece cece cee ce teeter e eee ence de seen OOS
form of appointment Of 2. 0... cece ccc cece cece ee ee te tee eees 442
form of interlocutory report . 1.1... .. cee cece ec ee eee eee 445,
torn Of G6ed We 6-6 aneukas decade ce hone ke-oen es Shae 4) how eee GEES 455
release to, for share of proceedS . ...... eee cece eee ee cere tenes 458
form of agreement for confirmation of report ............+++2-- 459
MERGER:
of principal of widow's thitd@ « .4éesiv 02 etdss ida see ecvenwn de aes 164
effect of alienation of premises On ........... eee e seer eee 165
POVIT BTU? oo & Hen orek swe kaee ya 6s Seay ee eee ete ee eR Te 165
DY SHELUE 5 4 a ceead ooe4 teeevi0s CREO Ree eee HERESY aS 165
by Orphans’ Court sale. ...... eee ce eee ce eee eee 166
| by private Conveyance .. . 6. cee ee eee ee eee ee ee tenes 167
MINOR:
devisee, ground for jurisdiction . ......... cc ec ee ee eee ee ee eee 11
guardian petltioas . os, coneccs cee cue eee ded eck eee ewes caw ous 42
commences partition at law . .......... cece ee ee eee eee 274
that party is, averred im petition 2.4 ¢ee0.eedeseeeseee bees anee nn 58
notice of inquisition tO BUATCIAN . .as se evew nena edae ee auwane rans 76
acceptance of, at appraisement . ....... ec cece eee ee eee eee eee 116
right:t0 bid. ¢i4 dees eee es Stee tea didn ae e eeaeeds saac Hee dee es 124
release Of reCOgMizANCe . . ... cc eee c tee ene ee cere tee eeeneses 159
Service On, PAPitlOl Bt WW a oo oda oa Ho Gahe Se Leena ees SEES DERG 277
that party is, stated Fi PRMOCIPe .. ...ce ce cemee soda nese eras eee ees 283
MORTGAGOR:
TIGHE tO; PATtItiON Ato VAM ¢ sisie Fete cosine eterno ave ec euee Dice etecg een d 253
MORTGAGHE:
right to petition for partition . ......... lee ee eee ee eee eee 43
not a party to partition, Orphans’ Court ...............+2..205- 54
BIE SUB <6. a, se. ctu danieh sig inaepined Gg! Scaiaday Seite eae MM veer GeR aM MEd Oa Buuren 278
accepting at ApPrais@MeNt « cxass cid veear sist aune dn Dawes 4 RES 112
MORTGAGE:
on cotenant’s share, effect on partition ...............- 30, 254, se
discharged by sale in Orphans’ Court .............0.00005
BOTA 3 coe a Swe ee ba eee eae Wea Eee eee eae Ee eRe :
effect of partition O19 usccusaddoweuas de wdeg gees oes 30
on premises, reduction of recognizance for ........... eee ee eeee 146
to secure owelty, Orphans’ Court . ......... ce eee ee eee eee 187, 140
Ob LAW eso aaktnec et anaes wee seee tree nates eee tee TASS 316
to secure purchase money, on sale of land, at law .............. B25
satisfaction of, effect on dower . .........0.ceeee wieaiweaw 187
MULTIFARIOUSNESS OF BILL . ....... ccc eee cece eee 339
MUNICIPAL LIEN:
discharge of, by sales Orphans’ Court .......... «Piel duame dig iseieety 211
ID: CQUItY: «. & Virse sc oases ss aussi eroiag aiahous 's auarshulersreses «ee. 361
INDEX. 483
N.
NON TENENT INSIMUL: Page.
proof of advancement relevant . 2.2.0... . cee eee eee eee 216
proof that some parties have no interest ......... 0.0 eee ee eee eee 237
SiPMiCAtlONs OL eo ons canals eS taayds: agen ee eden Deen aata Reese 261
Mabie Of DIEM « 2 abi 4 wad ees WHER 4 AES 8 RES USS BRE ew 293, 294
LOLI OLS 35. eee-wis. 3 Fo eyes Sa sae ae Stee hu ae Pe evened DA Mlnedce 407
NOTE:
taken by sheriff for purchase money of land ................000: 324
NOTICE:
when land lies in different counties ............ 0. ee ee eee eee 5
names and residences of parties unknown ............00e ee eeuee 49
tO: AllEMEE OF NEI.» dices eign e e oane a oie Suwa Sooke Daw Seen oo 51
to: husband. of Wty’... sss sake e ewes. o aeee sow akg Meee ane e Bias ahs 53
before awarding inquest . 1.1... .. cece cece eect e eee ee ene 60
ODICCH Of ss) soni bra Said es cee MAE A OAT oe BAG A Sine Gee whe anaes 61
of inquisition to be held, Orphans’ Court .............-. 00sec eee 72
tO WHOM, Piven esc oses ss Sa eee eRe sie Re Sees Hada Be 72
WETUB IT. HOLE, servo. coer vctharcs euesea tees nab ak ten sbauaunaet wialib ebestensite bkaciawee Teayhe GcnaNahra 74
ROMATEDES GE HORT iiss ois cece ape G4 here: Gaerne 4 WAS AIR hae alee ae 7
to boshband of Welt «.0 nascis wecwass eke eee Ee is Rdee de eSee te 17
to aiipiney Of Paty cuca ceeds iene ed We Kes eR eee OEMS 77
form: of; ‘Orphans’ Court (ssi a sega eaid ue way bas hades 381
Toru Of ACCERIANUE OF vans co1ceeys ese neve se eees seceroauk ne 379
publi@ation Of is s6% 4% va shaded 2444 ee o ea 54 ¥eeRs Ha Yee Be 379
WihGTs UAUGCCESArY co-+c4-eicw es oe 4s Weed ede POR aR ERE A 78
exception for want Of .......... ce eee cece ee eee eee 85
Of INQUISITION At IAW wie cs wade et waste ceadan Sioa ge moa ahead 301
Peet GE Sc ew face dak Mae as oe SESS G OHS MWR OM Pee dah S eee Re sy 413
CVIMENCE Of fois 5 cane ne dee Wed we disions ae eG Ghee A eens Ne 801
Of INGUISHION ‘in, CQUIEY cosine ses oss REG Non cha Ao eas Las Oe a 355
of rule to accept or refuse at valuation, at law .............4.4-- 313
POSTE BE 6044 cae seas VERS 6 EWEK EG Ohed Od ERE Se Kee es ewe 447
Of Affidavit Of SePVICE Of so5 ccisi ss Sede ods 2a LHwR SE es eREwEe ene 423
Sales: inc equity «. ¢saciudsede cameos pat aa eats erie ee sees 337, 359
UEDA ou schucoave. seed, Spake doeduetace gaassuacane hou deel dooemaee AS wneeonnperaaaer ees 319
Orphans’ Court, form . 06... 0. cece ee cece eee eee eens 392
of return. of order to sell, ‘Porm acccccczeaves peewee dave se ust a 454
of intention to procure guardian ad litem .......6. ee eee eee e eee 396
of exceptions to confirmation of Sale . 61... eee eee cece ee eee eee 195
O. .
OATH:
to petition for partition ....... 60. e cece e eee e ee eee ee ee 49
of commissioners, Orphans’ Court, form of .......-. +... eee eeeees 378
OBSTACLES TO PARTITION: a
i ANS! COULE 6 cca oa srernaos ekg ONE RS RET EOE Hoag SURE Ce ST HAS
at es sidan Ged ebleny ged gt bray xtierG NohPaaooana Gauaue dud esi argue. @abony Sane ee te Cueva ans 251, a
ee ee 30, Bi, Baa
former partition ..... 0. ec cece eee eee ete eet e tenes i
AAVETSE POSSESSION 1... - ee ee eee eee eee ee eee eee 81, 35, 259, 262
absence of tenancy in COMMON ...... se cere ee eee reste re eeens oo
improvementS .....eecceeeeee reece adses sees gh haat Miwa Barat ape a
disability of party ..... sisueael Gedo SSR ees pee eee teen eee ee a eees
484. INDEX.
OBSTACLES TO PARTITION — Continued: Page.
life estate and remainders ......... 0. cece ee eee ee ee eee e teenie 36
OQ UT ADIE “GLE —<. scscivieod-s-g-e-descpesd sim olsen qubrten wai haratalieansd.& obaldicueneiele auavaeeve 252
EEUSES. sero ia-apsigves 5. ases spawn seiaiavesecaiane scbea 8 antua sel ace anata a ae oeneloae Ew woes as 253
objects for which land is held in common ................ 255, 346
testamentary provision for partition ........... 0. ce eee eee eee 257
PATOL PALWHON, 6:8 cae deed oasis h s Voy REDRESS Eee OUR or aees 260
defective title. .wsssiris chine oveniases < wie vere vekes sa es oes 261
competing claimants of same Share ........ cece eee ee eee cece ees 348
COUT EEO os as esd we pee 1 AOE) Oe LES SHE AE CERS AS GO RES 344
proceeding to exonerate land from legacy............seeeeeeees 345
incapacity for division ............. ieee acter Ore hk bane aves a eenes 346
ORDER OF SALE:
IN *PALtItION: 6 vacates Wi dwwlies ounie cas Wawa ad cuisines Aol dine eae 321
ORPHANS’ COURT:
origin of jurisdiction in partition ...... 0... cece eee eee eee eee 1
OXCIUSIVE. FUTISMICHOD: OF wise cin es apevece 68 w¥ aiid ie ea N84] Sue e iy Wlnlocetnse hoe 1
jurisdiction in case of testacy............c cece eee eens 11, 14, 63
when interests are from different ancestors..............065 13
when widow claims against will ........... 0.0. ee eens 14, 40
when decedent owned fractional interest ................4- 24
of how many estates in one proceeding ............-0.e000- 26
when there are improvementS .........0c ce eseeceeeesceeee 36
collection: Of OWElEY’ <5. c02 08 dasa cena eee awe weed eee S88 171
WECCRI NEE TOE 6g oe ree acke Neda wed es ROE R EO Ree Cee 172
discharge of land from widow’s third ............ 184, 185, 186
OWELTY:
mortgage or other lien on heir’s share ......... 0.0... ce eee eee 30
equal partition impossible ......... 0. eee ee ee ee ee eee eet tees 118
PAYIDES: OF SSCUPIN aie cic csaacarauareoe scene auabdte: acters cateveusial oacecei avers, setbscsusad 181
payment by nomreSident .......c. cece ee ee ce ee eee te eet ee tees 183
made a lien by recognizance, etC. 2. ceca ns. s news an eeuaas ee trees 187
BOUIOT DOC oan ss.9 ey shod 65a Ose eee ha VEE Rea earrdbe Thee 139
WiStEUGHOD OF kak ne Pees bos 4a PRR OES 4 Cobo ee KEG Seah eieecscueioes aeaseeias teen dead tories dase 57
reciting will under which interests are derived . .......e. eee ees 58
stating minority of party . oe... ek eee ce eee te ee tte eee eee . &8
PIAY ER OB so ae wis. soba umanere eno mceceurvese aah Gu/sventales G.cencias Sven walled werd aidan ace 58
POW, oy cap eg sar coca aelia Gh Shar wal ease ed Beara ie SEL ROE w 369, 370
for amendment of petition, form ........... cece eect e cece eeeees 3174
order allowing, amendment, form ............cce ee ee neers 3875
for sale, without Imquest: «i144 40000 enau ious chen eave 212, et seq.
form. Of ssaesewas ve vngionees MAY os sae Law w eee eee hos 391
for resale; FOPMM OL swede das ein 8945 Re Rass Os «HG BHI Fs ww adiw wee 398
to compel payment of owelty......... 2... cece eee ee eee 171, 172
TCG kk I AGATE Sas Sa pes | REE SEs e eee ae ead Gaeea be 396
to set. asidé AWard Of TNQUESE 2... cnc cvs vee ee eed rae aennew eee 62
EP OTETIN segue and sd av dase 6a Sapien) BP ai otha ev cepanger ia Sian rw ne reesei 397
for rule to take or refuse at valuation, form ................+--- 386
for leave to pay owelty into court .................. knee eae ee 174
to discharge dower when claimant cannot be found .............. 187
to discharge lien of owelty 1.0... ... cc cece cece eee eect eeeees 188
£0 refOrm\t TECORNIZANCE 66 ccs cana des Cees ce DEEDES ARH H Se SER OOS 143
‘to set off debt against recognizance ........... cece cee ee cece ees 161
for auditor to distribute aowelty ... 2. 5444-4 0045 aecewereeeeewa se 189
by purchaser, for delivery of deed to him .................0.44. 198
‘to compel trustee who has sold to file an account................ 201
to compel purchaser to comply with his bid....................-. 209
for guardian. G@. ULEN. occ coccinea we eens ee ba be anced oe Hae 397, 445
‘PETITIONER, FOR INQUEST, ORPHANS’ COURT:
Widow Of MevedhOl wisan eden boas cu dered ee oe ee man benasew anes ¥ 389
Of Git 536s iene sees ae sk PRES OL ARE Te RoE RW ES Ae dee eS 40
ic ee eee es eee ee eer Ts Serre ee Ee rer er ere ree ree 41
TNEP - 25.5. o kaa 64 Roem Pe od WOR ORT EWE ESE Mew ee eee kA 42
HOI OE EUR arose doets Girees 05 koa tage edh seer Fed rau taaae OS OSs Bie SA a Ae owen 42
lien Ge TOL MIE hs pone scaw ovarian Sods aeiay. 084 se coeatiel aceevterese b ® dlswadg duvets undoes 42
Of ligit oF Her .schaxacicuaede hed wad TRGA BeEW Aes eat 42
Ol WHA vc cdcse kee Rekenas Nees L490 Aoee Eee Eek Ee Lees eax 42
mortgagee Of heir. cccke oc cg ass od eae eee CORRES Ce dE ROO eg 43
VUTEC: epee 3 aus ats. ask “asa hial anaes Sb babraitese agree wend Tareas ide eRe ae Ree 48
Hiféx CE ait os eciynat ce danatebes wide as 6 arate sq aaa Medes austere aes 43
TOMIAIMOUOTINGH. 2 Swe! Se Aid naievacecc hls Ruawlesieiecs lowes ¢ ee Ris deme Gee 44, 45
HesbeGd OF HOY 6s. 40b45008 40 WER OO ed ee bow Pee 880d see Ee aw 46
determining the right Of ..s.ccccs esse seews as ewg yess eases eee ee 47
PHILADELPHIA:
equity jurisdiction in 2.2... cece cece cere eee eee e eee 334
APPEAIS: 20s es aa.e es gaewae e die mins Hid Seles edwin Mala 8 Men TE 9G Noe aie Soste 365
PLAINTIFF’S SHARE:
Sét-Of i Only” sae eeu nrsea soos eu hia ham ee ame eae Mauna aed 304, 305
PLEA:
to petition for partition ......-.. 0 eee ee eee eee eee eee 47, 238
non tenent insinul, advancementS ....... 6. cece eee eee ee ees 216
HOLM: OL: hc eR LR TE RERS Hs Mee ice Mee ele as SiMe S oe enh ys 407
interpretation, Of 24 saascaseuse~< saan de Ri wed ees PORE ae EE See 204
the general issue ... 2.6.0. eee eee ce eee meee eee tenn eeeee a
Gon, At LAW 6. ec cece cece cence ee ee eee eee e eee eenes
sdiaae OF, sc kupua ards ayieitene wpe egbauatauiaacmauatie’ gb atsrh Geeta aR OA OS Ble 406, 407
special . oe eiee cece cee eee treet e eee teen eee eet ene tenes 294
INDEX. 487
PLOT OR DRAFT: Page.
inquest in Orphans’ Court .........0. econ cece eee Ss iereledeabsare aioaesac8 69
PLURIES:
WNGQUCHE ers ace bet Ew ew ed eee eS eee ka5 WE Oe DE a Cee eae 66, 87
order to sell land wa% < scwtine se ta tears das eeaieke swale es Hw Ks 4 Hw LO 194
breve de partitione faciendd 1.0... cee cee eee eee eee 300
POSSESSION:
obtaining, by purchaser, Orphans’ Court ...........0. eee e eee 200
MG: JAW as Bae ce atte he Seas wR A OS Whee igtek dooniee ee 326
adverse, omission of land from partition .............. 81, 35, 63, 221
obstacle to partition at law ....... cc cece eee cece re eee eeee 259
Presumption: AS tO ws dsc cesar bee Ree eee RHE Teele wee 259
POWER OF SALE:
obstacle tO Partition sokess ss seis od eG shee SO ee KEE oe Hale ees 274
PRAYER OF BILL IN EQUITY FOR PARTITION............. 365
PROCEDURE:
te compel payment of owellyY 442.4