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the destruction of hers.

Mr. Davis cited 1 Atkyns 506 ; 1 Vesey 171 ; 2 Atkyns 358 ;
1 Dr. Ch. Rep. 310 ; Carlisle v. Cannon, 3 Rawle 489.

The opinion of the court was delivered by

HUSTON, J. The plaintiffs were the brothers and sisters, or
brother's children, of John Seider, who died intestate, leaving no
children, but a widow, who is a defendant. He died in February
1831, seised of the premises in dispute, viz., a house, and about
twenty-two acres and eighty perches of land; it is admitted that
the widow is in possession, and has been since her husband's death.

On the 4th of May 1834, [1832 ?]' Samuel Seider, one the
brothers of the deceased, presented a petition to the Orphans'
Court. This petition stated the death of John, leaving neither
father, nor mother, nor issue, but brothers and sisters ; describing
the property now in suit, and a lot of three acres of woodland;
and "prayed the judgment of the court on the matter, by inquisi-
tion to be awarded, or otherwise, as the court should think proper,
to obtain the same, whether the estate could, or could not, with
propriety be divided ; and whether the widow should have a moiety
or half part thereof, including the mansion-house, during her
natural life; or whether she should hold and receive the rents,
issues and profits of one moiety thereof during her life, according
to the fourth section of the act of 19th of April 1794 ;" where-
upon the court awarded "an inquest to ascertain whether the said
real estate can with propriety be divided among the widow and
legal representatives of the deceased, in such manner as to give the
widow one-half, including the mansion-house." The inquisition
was taken on the 6th of August 1832, finding that it could not be
so divided. On the 16th of September 1833, the inquisition was
confirmed. And after proving, what was not denied, viz., that the
widow had been, and is, in possession, and had said she would hold
the land as the law would decide, the plaintiffs rested. The defend-
ant then called witnesses to prove, that five or six years ago, in the
court-house, there was an agreement between the widow and several
of the heirs (some not being present) ; and three men were either
chosen by the court or the parties, to fix the amount ot the yearly
rent. That the men met, some of them having been notified by

U 1 Inserted by I. T. M.||



1839.] OF PENNSYLVANIA. 217

Seider v. Seider.]

Solomon, one of the heirs. That they did fix a certain rent, (a
writing containing which was offered and rejected). One of the
referees said, all this fell through because notice was not given to
all the heirs.

I think I may fairly conjecture, that it was in consequence of
this agreement at court, that the court confirmed the informal and
*defective proceeding on the petition ; and that but for this r^n-io
agreement, which rendered any decision of the court un- "
necessary, it would never have been confirmed. It is because
this agreement was not put on the record, or not reduced to writing
and signed by all the plaintiffs, that the parties are subjected to the
trouble and costs of this suit. No doubt the judge who then pre-
sided, thought either that the brothers then attending and making
the agreement, had authority from the others, or would procure
their assent in writing. The judge before whom this cause was
tried, evidently, and very properly, felt some delicacy in doing
what, in effect, was overruling what had been done by his prede-
cessor.

The plaintiffs' counsel stated certain propositions, and required
the opinion of the court on them. [Here the learned judge stated
the propositions and answers.]

It will presently be seen, that where a person dies leaving a
widow and no issue, her interest in his lands is in no respect like
her dower at common law, except that it is only for her life. No
writ of dower lies for this her interest if it does in any case for
the interest of the widow of an intestate in his lands (it may lie,
against a purchaser of lands from her husband after marriage,
where she has not executed the deed ; because her children having
no interest, no petition for appraisement, or valuation, can be sus-
tained, and unless she could support an action of dower for such
lands, she would have a right and no remedy ;) but where the
husband dies seised and intestate, the better opinion seems to be,
that the proceeding must be according to the acts of assembly ; and
this is such a case. 1

It would seem necessary to cite, at least parts of several acts
relating to this matter ; and the rather so, as some of them seemed
to have escaped the notice of the plaintiffs' counsel.

The act of the 19th of April 1794, after providing for cases
where a widow and children are left by an intestate, proceeds in
section 4, to say, " If the intestate leaves a widow and no lawful
issue, the said widow shall have one moiety or half part of the real
estate, including the mansion-house, during her natural life, except
in cases where, in the judgment of the Orphans' Court, the estate
cannot with propriety be divided ; and in that case, she shall have
and receive the rents and profits of one moiety of the real estate."

1 || See Gourley v. Kinley, 16 P. F. Smith 274.||



218 SUPREME COURT [Dec. Term,

[Seider v. Seider.]

Evidently this means one moiety of the rents and profits, for how
can the rent of one moiety of an estate be ascertained, if it cannot
be divided into moieties.

The 22d section states, that " To prevent any doubts which may
hereinafter arise concerning the manner in which partition of the
intestate's estate may be made, Be it enacted," and proceeds to
direct, that on a petition presented by the widow or any of the
children, if of age, or by their guardian, &c., and if partition is
made, the Orphans' Court to confirm, " provided, that where any
estate in lands, tenements or hereditaments cannot be divided
*91Q1 amon g * tne children, or widow and children, without pre-
J judice to, or spoiling the whole, the inquest shall make a
just appraisement thereof to the Orphans' Court ;" and then pro-
ceeds to say, that it may be awarded to the eldest son, or if he
refuses, to the others in succession, paying or securing the shares
to the other children ; " but where the widow is living, and the
whole premises shall be adjudged and ordered to the eldest son, or
any of the children, the wife of the person so deceased, shall not
be entitled to the sum at which her purpart or share of the estate
shall be valued, but the same, together with the interest thereof,
shall be and remain charged upon the premises, and the interest
thereof shall be annually and regularly paid by the eldest son, or
such other child to whom the said lands shall be adjudged, his or
her heirs or assigns holding such lands ; to be recovered by such
mother by distress, or otherwise, as rents are recovered," &c. The
same section goes on to provide for a case in which, although the
estate cannot be divided among all the children, yet it may without
prejudice to or spoiling the whole, be so divided as to accommodate
more than one, in which case it is to be allotted ; the choice being
first offered to the eldest son, and the others in succession, and if
no son will take, or there are no sons, to the daughters in succession,
the elder having the first choice ; " or in case the intestate left no
issue, the same may be assigned to as many of the next of kin to the
intestate as such estate will conveniently accommodate, without pre-
judice to, or spoiling the whole, (preference being given to the male
heirs among such as are of kin in equal degree), &c., &c. The said
children or next of kin, to whom the said estate shall be so assigned,
or some friend for them, paying, or securing to be paid, to the other
children of the intestate, their respective parts of the value thereof,
in the same manner as hereinbefore directed, where one of the
children takes the whole estate."

No doubt, that although the widow is not named in the last
clause, he who drew the law thought she was included in the phrase
" in the same manner as hereinbefore directed," but doubts were
suggested, and to remove this one, and some others, the act of the
6th of April 1797, was passed ; the 8th section of which follows :



1839.] OF PENNSYLVANIA. 219

[Seider v. Seider.]

" Like proceedings may be had where the intestate leaves no
children or their legal representatives, both in making partition, or
where the estate cannot be divided without prejudice to or spoiling
the whole, by directing an appraisement, and ordering the whole to
the eldest brother or his issue, if any such shall be of full age, if
he or she shall accept it, or to any other of the brothers or their
issue successively, if any such shall be of full age, upon the refusal
of the eldest brother or his issue ; (and the same provision for
females if all the brothers refuse, or there are no brothers), in the
manner and on the condition directed by the act to which this is a
supplement, with respect to the children of the intestate. And the
same mode of *dividing, assigning and appraising estates r*920
shall be observed in all cases where by this act, or the act L
to which this is a supplement, estates are to be vested in several
persons as tenants in common." It may be here observed, that
those to whom the real estate of an intestate descends are repeat-
edly called tenants in common, in both the original and supple-
mentary acts. And here again one would suppose all cases were
provided for ; but as the widow was not expressly named, doubts
were expressed and it is strange that they were listened to
whether she was included in the words, " in like manner, and on
the condition directed by the act to which this a supplement." It
would seem to have required some time to raise this difficulty, or to
find any person to believe it was one. On the 7th of April 1807,
however, another act was passed, as follows : Section 6. " 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 representa-
tives ; and upon the confirmation thereof by the Orphans' Court,
the same shall remain a charge upon the said shares ; and the
interest thereof shall be annually and regularly paid to such widow,
and may be recovered by action of debt or distress, as rents are
usually recovered in this commonwealth ; and when the estate is
divided into fewer parts than there are children or representatives,
the same proceeding shall be had to estimate and apportion the
value of the widow's purpart among the said parts, which shall
remain a charge thereon ; and the interest thereof shall be paid,
and may be recovered as aforesaid : and upon the decease of any
such widow, the whole value of the said purpart shall be distributed
among all the children or representatives, in proportion to their
respective shares, according to law."

It had sometimes happened, that when an estate was found by
the inquest incapable of division, and was appraised, that no one



220 SUPREME COURT [Dee. Term,

["Seider v. Seider.]

of the children or representatives would take it at the appraisement.
On the 2d of April 1804, an act was passed prescribing proceed-
ings on which the Orphans' Court might order it to be sold ; and
the court on a sale, are directed to distribute the price according to
law and justice; but as that act not expressly provide for the case
where the estate was divided into fewer parcels than there were
heirs or representatives, this last act provided, in section seven,
" Where the estate of an intestate is divided into fewer number of
parts than there are children or representatives, and any or all of
the said parts is or are refused to be taken by the children or rep-
resentatives, the like proceedings shall be had to sell the parts so
refused, as is directed in case of the appraisement of the whole, in
and by an act of the 2d of April 1804."

*221 1 *These laws being on the same subject, are to be construed
J as if all embraced in the same act ; and will be found to
provide for all cases which can occur in the disposition of the real
estate of an intestate ; at least they provide for the case before us,
in a manner sufficiently plain to enable us to dispose of this case.
In every instance in which land cannot be apportioned equally, or
according to their rights, among the children or representatives of
the intestate, the first, and all succeeding acts, require an appraise-
ment of the whole, if not capable of division without prejudice to
to and spoiling the whole ; and of each part if it is susceptible of
division into fewer parts than there are children, or if into as many
parts as there are children. See 1 S. & R. 460. And if in any
of these cases an appraisement is not made, the inquisition is radi-
cally 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 proceeding 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 ; and
I have said, would no doubt have been set aside in this case, if an
agreement had not been made, which rendered any further action
of the court unnecessary ; which agreement being left incomplete,
from ignorance or ill-judged parsimony in not consulting counsel,
has occasioned this suit.

I am aware that in Young v. Bickell, 1 S. & R. 460, it has been
supposed Judge Tilghman expressed a doubt as to the power of the
Orphans' Court to make partition between the widow and repre-
sentatives, where there are no children. In that case there was a
widow, no children, but a father to whom the part not given to the
widow went during his life ; and to whom the widow's part also
went, if she died before him ; and the doubt was, whether the acts
of assembly provided for such a case, where only tenants for life
were parties to the partition ; and he says the acts contain " expres-
sions of large import respecting partitions, and I suppose there was



1839.] OF PENNSYLVANIA. 221

[Seider v. Seider.]

a general intention of authorizing partition in all cases where the
real estate descended to several persons. Yet I see difficulties in
the present case where the whole estate goes in the first instance to
tenants for life.''

Judge Yeates was decidedly of opinion that the acts of assembly
embraced every case and observed "that those in reversion had
notice even before the court objecting to the gross inequality of the
partition." It was set aside by the unanimous opinion of the court
for this inequality. Now the doubt of Judge Tilghman was confined
to the case where only tenants for life were before the court, and
whether a partition between them ought to bind those in reversion.

In the case before us, the question is, whether the brothers and
sisters having presented a petition for division only, or whether
*she shall be entitled to one-half of the rents and profits r*no9
during her life a form of petition not sanctioned by law ^
or practice ; and the court having awarded an inquest to ascertain
" whether it could with propriety be divided to and among the legal
representatives of the deceased, in such manner as to give the
widow one-half, including the mansion-house;" and the inquest
having returned u that the real estate of the deceased cannot with
propriety be divided so as to give the widow one-half, including the
mansion-house;" and the court having confirmed this, the question
1 say is, whether in such case, the brothers and sisters can by eject-
ment recover the whole or one-half of the estate ? the widow never
having resisted or denied their claim or right according to law. If
they could so recover, what would be done next ? Would they
bring a writ of partition at common law ? The act expressly for-
bids this. They must then petition the Orphans' Court under and
according to the acts of assembly ; but they could have done this
before bringing the ejectment: it was then useless; it was more, it
was vexatious and oppressive, and against the express provision of
the act of 1794, which says, " to prevent disputes concerning the
manner in which the partition of the intestate's estate may be
made;" and also the 8th section of the act of 1797, which says,
" and also the same mode of dividing, assigning and appraising
estates shall be observed in all cases, where by this act, or the act
to which this is a supplement, estates are to be vested in several
persons as tenants in common ;" now this estate is vested, or to be
vested, in the collateral heirs of the deceased as tenants in com-
mon ; and the widow may not be a tenant in common with them,
she has an interest by the law, subject to which it must in some
manner vest in them. Whether this interest shall be a life-estate or
one-half of the real estate, including the mansion-house, or shall be
the interest of one-half of the price at which it shall be appraised or
sold, must depend on the future proceedings in the Orphans' Court.
Her right to the possession of the mansion-house is given by act



222 SUPREME COURT [Dee. Term,

[Seider v. Seider.]

of assembly ; it has no connection with or dependence on the right
of a widow at common law. It may cease by an inquest finding
the property cannot be divided without prejudice to or spoiling the
whole, and an appraisement, and the land being taken at the ap-
praisement by one of the heirs, and on adjudication charging her
interest on the land ; or by a sale and appropriation of the interest
of half the price to her use during life; and not until, in some of
these ways, her rights are ascertained and secured.

This view of the case, which is substantially as it was considered
in the court below, puts an end to the plaintiffs' ejectment, and
supersedes the necessity of a particular notice of the points pro-
pounded to the court, and the answers thereto.

Judgment affirmed.

Cited by counsel, 7 W. & S. 251 ; 3 Barr 65 ; 7 Id. 463 ; 12 Casey 491.
|| 16 Smith 64. j|

Cited by the court, 1 Harris 218; 1 Casey 215; 5 Wright 180 ; and ex-
plained 7 Casey 12. ||Referred to, in a review of the powers and jurisdiction
of the Orphans' Court, Musselman's Appeal, 15 Smith 485 ; and in the court
below, Rankin's Appeal, 14 Norris 358 ; and in a qucere as to whether a
widow can be considered one of the " statutory heirs" of her husband : Clark
. Scott, 17 Smith 453. ||

||Followed as to ejectment not being maintainable in such cases. Gourley
v. Kinley, 16 Smith 270. ||



*223] *[PHILADELPHIA, JANUARY 25, 1840.]

Horbach against Eeeside.

Where a verdict has been taken at Nisi Prius, subject to the opinion of the
court on the evidence, the court will not order judgment to be entered for
the plaintiff under the xvinth rule, unless some unforeseen occurrence has
taken place which has put the debt in jeopardy by an increased risk of the
defendant's insolvency ; which must be specially shown by the plaintiff. The
mere circumstance that the defendant's real estate is incumbered, is not suffi-
cient, unless it be shown that the incumbrance did not exist at the time of
the trial, or that the defendant is about to incumber it further.

IN this action, which was tried at the last court of Nisi Prius
for the County of Philadelphia, held by Rogers, J., a verdict was
given for the plaintiff, subject to the opinion of the court upon the
evidence.

Mr. Meredith now moved for leave to enter judgment on the ver-
dict, pursuant to the following rule of court.

Rule XVIII. 4. " In all cases of motions for a new trial, or of
verdicts subject to the opinion of the court, the court may, on the
report of the judge before whom the cause was tried, order judg-
ment to be entered for the plaintiff to stand as security."



1839.] OF PENNSYLVANIA. 223

[Horbach v. Reeside.]

Mr. Badger and Mr. 0. J. Ingerwll, contra. The verdict was
given in consequence of the rejection, upon technical grounds, of
a witness offered on the trial. The defendant's case was not heard.
The rule of court impli-es imminent danger of insolvency of the
defendant, and certain merits in the plaintiff's case. The defend-
ant in this case is the owner of a large real estate near the city of
Philadelphia. The action is misconceived ; and such was the inti-
mation of the learned judge who tried the case.

Mr. Meredith. The rule of court was made to prevent the incon-
veniences that may happen from the plaintiff being without any
security for his debt during the long interval that may elapse after
verdict, and before the judgment of the court can be given on the
argument for a new trial. The defendant here may have a r*n(>A
*large real estate, but it may be largely incumbered. The *-
objection to the form of action is not tenable, and is at all events
merely technical.

PER CURIAM. A cautionary judgment under the rule is not of
course, but for special matter disclosed by the report of the judge ;
and, unluckily for the plaintiff, the judge is of opinion that his
cause is misconceived. That itself would be reason enough to dis-
charge the present application, even did the cause stand on a motion
for a new trial. But it stands on a verdict subject to the opinion
of the court on the evidence, which was consequently given by con-
sent, and subject to no conditions that were not expressed. What
authority have we to interpolate another ? The answer is, that the
rale itself, which has been made expressly applicable to such a ver-
dict, reserves the power of disposing of contingencies which have
not been provided for by the parties; but it is applicable only to
contingencies ; in plain terms, occurrences which could not be fore-
seen, and which unexpectedly put the debt in jeopardy by an
increased risk of the debtor's insolvency, which, however, must be
specially shown to make a case for the discretionary power of the
court. The cause shown here is that the debtor's estate is incum-
bered ; but it appears not that it was otherwise at the trial ; and,
beside, nothing would be put to hazard by the want of a lien,
unless he were about to incumber it further. It is not pretended,
however, that any other creditor is pressing him. A judgment is
an injury to a debtor's credit which ought not to be inflicted wan-
tonly, and before the debt has been judicially established ; and no
sufficient reason has been shown for it here.

Rule discharged.

Cited by counsel, 4 W. & S. 413.



225 SUPREME COURT [Dec. Term,



*225] * [PHILADELPHIA, JANUARY 25, 1840.]

Barton against Wells.

IN ERROR.

1. Where it appears from the record, that deeds, records or papers material
to a sufficient understanding of the case were given in evidence in the court
below and these documents are not annexed to the record, the court will
affirm the judgment.

2. Agreements made for the settlement of family disputes are favorably re-
garded by the courts ; and such agreements will be more strictly enforced
than others, especially after a lapse of time.

ERROR to the Court of Common Pleas of Pike county.

On the return of the record it appeared that James Barton, and
Sarah his wife, brought an action of ejectment against Nathan
Wells, to recover a tract or piece of land situate in Upper Smith-
field township, in the said county of Pike, containing ten acres or
thereabouts.

The cause was tried before Scott (President), when various deeds,
records, and papers were given in evidence on the part of the plain-
tiff and defendant respectively. The contents, however, of these
documents were not stated in the bill of exceptions ; nor were they,
except in one instance, annexed to the record.

The charge of the court, to which exception was taken, was as
follows :

" The plaintiffs claim the land in controversy in right of Sarah
Barton, late Sarah Biddis, as one of the children and heirs of John
Biddis the elder, deceased ; and their right to recover any portion
of the land may depend upon the construction to be given to the
agreement executed between James Barton, John Clark, George
Biddis, and John Biddis, on the 24th of October 1820. We learn
from the testimony of David Wells, Hugh Ross and John Brink,
and from the record exhibited, and from the terms of the agree-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) → online text (page 25 of 71)