delivered the opinion of the court, March 17th 1879.
About the property embraced in the petition of Mrs. Catharine Wagner, of the 25th of April 1856, there is no controversy. That petition, in its terms, was within the provisions of the Act of 3d of April 1851, hence, the sale under it operated to convert the realty into personalty for all purposes and- must be so distributed. The contest is, therefore, confined to the sale by order of the Orphans’ Court of the land in Upper Bern township, on the application of Franklin V. Wagner, guardian of Valeria C. Albright.
The only question is, Avhether the proceedings by which this sale was brought about, were under the-Act of 29th of March 1832, or under that of 18th of April 1853. If under the former, there was not only a conversion, but the proceeds must be distributed as personalty; if under the latter, they must 'be treated for the purposes of distribution as realty. The determination of this question must depend upon the interpretation of the petition itself, for there is nothing else by which to be directed.
That petition sets out the ownership of the land therein described, as having been vested in fee, in Maria Catharine Wagner. It then sets forth her death, leaving as her sole heirs, her mother, Catharine Wagner, Valeria C. Albright, a minor child of a deceased sister, and the petitioner, Frank V. Wagner, a brother. There is thus set forth a life-estate in Mrs. Wagner, Avith a vested remainder in fee in Miss Albright and Frank V. Wagner, and as all these parties join in the proceedings, the entire estate is represented. This petition further represents, “ that the rents, issues and profits of the said real estate are insufficient to keep the same in repair, and be productive to said parties interested, that the buildings are in a state of dilapidation, that it Avould be much to the interest of the parties interested in said real estate, and to their advantage that the same should be sold.” This puts the case directly within the Act of 1832, and had the petition stopped at this point, there would have been no difficulty, but the person who drafted it, for some mysterious reason of his own, saw fit to add the following, viz.: “ That your petitioner is desirous that it should be sold for himself and ward, so as to bar any estate or remainder of any of the parties therein, and give the purchaser a clear and indefeasible title, and thereby insure a better price for the same.” This clause would, at first sight, bring the proceedings within the purview of *308the Act of 1853, connected, however, as it is with the preceding clause and with -the recitation of title, it becomes obvious that the court below properly treated it as mere surplusage.
The act last above mentioned was designed to operate upon certain estates and conditions not found in this petition. It alleges a desire to “ bar remainders,” but the statute is operative only on contingent remainders. The fifth section requires, “ that the petition shall set forth an explanation of the title, and of the purpose to bar the entail, defeat the contingent remainder,” &c. It cannot be doubted but that the design, in requiring an explanation of the title to be set forth, was in order that the court might judge, extra the prayer of the petitioner, whether the case was really and properly within the act. If, however, this be the true rendering of the statute, then the present ease is not within the act above mentioned, for the estate mentioned in the petition is unencumbered by entailments, contingent remainders or executory devises. It cannot be doubted but that the joint deed of the parties would vest in their vendee a fee-simple absolute. Such being the case, there is nothing requiring the intervention of the Act of 1853, it is, therefore, out of the question, since no decree could properly have been made under it.
Decree affirmed, appellant to pay the costs.