Hillbish's Appeal

Mr. Justice Mbrcur

delivered the opinion of the court, May 5th 1879.

This is a distribution of the proceeds of the real estate of George Deibert, deceased. It was sold by his administrators in pursuance of an order of the Orphans’ Court, for the payment of debts.

It had previously been owned by John Deibert, who died seised thereof. He left surviving a widow and nine children, George being one of them.

In October 1836, the Orphans’ Court of Schuylkill county awarded an inquest upon the lands of which John died seised, with a view of making partition of the same. The, inquest appraised this purpart, and in March 1837, George elected to take it at the valuation. The court approved the security he offered for the payment of the widow and other heirs’ proportion thereof, and adjudged the purpart to said George and to his heirs and assigns for ever, “he having entered into the usual securities to pay the other heirs according to law.” The record omits to state the form of the security, and neither bond nor recognisance can be found. In April 1858 the widow of John died. In June 1862 George entered an amicable action and confession of judgment in favor of the other heirs of John, for a sum agreed on as due “ on recognisance executed by him to the Commonwealth of Pennsylvania for the use of the widow and other heirs of John Deibert, deceased.” It included not only the one-third of the appraised value of.this purpart, on which the widow was entitled to interest during her life, but also certain portions of the two-thirds decreed to be paid to the other heirs at the time of the partition, and which remained unpaid. This judgment was revived in May 1867; but more than five years elapsed before it was again revived.

Before the last revival the appellant obtained a judgment against George, which thus became a lien, and by due revivals continued such at the time of his death. Hence if the liens rested on the judgment alone, the one in favor of the appellant was the prior lien at the death of George. The learned judge held the evidence sufficient to prove that the security given was in the form of a recognisance ; but notwithstanding the confession of judgment, and the omission to revive it within five years, that the recognisance was a continuing lien until the payment of the whole obligation which George assumed when the allotment was made to him. He therefore decreed that the unpaid portions of the two-thirds, as well as the third on which the widow drew the interest, should be paid in preference to any judgments subsequently recovered against George. This is assigned for error.

The 41st section of the Act of 29th March 1832, relating to. the partition of the real estate of a decedent declares, “should the widow of the decedent be living at the time of the partition, she shall not be entitled to the payment of the sum at which her purpart or share of the estate shall he valued, but the same, together with interest thereof, shall be and remain 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 herein before 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 otherwise, 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 or assigns, holding the premises to the persons thereunto legally entitled.”

The Act of 19th April 1794, in substantially like language declared “ the purpart of the widow shall be valued, and the same together with the interest, shall remain charged on the premises ; the interest to be paid annually and at her decease the principal sum to be distributed and divided among the children, and representatives of the intestate.” The character and duration of the widow’s lien under this Act of 1794, received a careful consideration in Medlar et al. v. Aulenbach and wife, 2 P. & W. 355. It was there held that when the legislature thought proper to divest the right given to the widow, by the common law, they took effectual care of her interest by creating a statutory lien to the extent of the value of the purpart which with the interest was to remain charged on the purpart; and as the death of the widow might occur at an indefinite period of time, they had also extended the lien to the heirs and legal representatives. In this respect a distinction was made between the purpart of the widow and the shares of the heirs of the intestate. The latter are placed on a different footing. They are payable at a fixed and short period of time after the allotment. But as to the sum, on which the widow draws the interest, and to which the heirs are not entitled until after her death, the statute has stamped the same continued lien, as on the interest ■which it produces. Nor does the fact that security was given for its payment by either bond or recognisance change the effect of the lien. It is merely cumulative to guard against accidents by fire or otherwise. It is collateral only, the law creates the lien: De Haven v. Bartholomew, 7 P. F. Smith 126. The lien thus created by statute for the- security of the widow’s rights, can no more be lost by the recovery of a judgment or merged therein, than the lien of a recorded mortgage is lost or merged by the issuing of a scire facias, and obtaining judgment thereon. Nothing less than payment discharges the lien. A sheriff’s sale on a judgment obtained against the heir to whom the purpart was allotted, will not divest the widow’s lien : Fisher v. Kean, 1 Watts 259. Nor will an actual payment to the administrator authorized by an order of court to sell the land, under proceedings in partition, discharge the lien which the heir has- in the share allotted to the widow : Hise v. Geiger, 7 W. & S. 273. As, however, this preferred and continued lien does not extend to the portion which the heirs of John were entitled to on his death, the decree must be reversed in so far as it prefers the several sums due on two-thirds of the whole valuation, but in holding the heirs entitled to their respective shares in the one-third allotted to the widow, no error was committed.

Decree reversed, and record remitted with instructions to decree distribution conformably with this opinion.