Opinion of the court delivered by
Junkin, P. J.This plaintiff was a daughter of Abraham Blosser, ■who died in 1S37, and she inherited from him certain real estate. In ■1840, she married Benneville Kramer, and in 1851, her real estate was partitioned in orphans’ court of Union county, or, rather, her father’s real ■estate was so partitioned,and being accepted by one heir, she, in conformity with the practice in that county, received a bond for her interest of $2700. On 16 September, 1852, she made a declaration under the 48th section of the act of 29 March, 1832, authorizing her share to be paid to her husband without security, which declaration, &c., was duly filed same day. The husband received $2,000 on the bond, and died in 1871 ; and she ■now sues her deceased husband’s estate to recover the amount so received *120by him, treating him as a trustee. This act has been in force forty years,., and this is the first attempt to turn him into a trustee under said section,., showing plainly that the profession have treated the payment of the wife’s share in partition, when paid to him under the declaration, as absolute.
In Yohe v. Barnett, 1 Binney 365, it was held that the husband could, take her share in partition as personalty. This was unsatisfactory to the. profession, and hence the 48th section of act of 29th March, 1832, which.' required him to.give security for the re-payment of the principal to the-wife if she survived him, if not to her heirs; and if he was unable to give-, this, then a trustee was appointed, ‘-Provided always, That, if the wife-, being of full age, on a separate examination, the husband not being present,, should declare, &c., * * * that she does not require such moneys to-be secured, * * * then and in such cases the husband shall not be-required to secure the said moneys in manner aforesaid.”
It seems clear that it was intended by this section to allow the principle of Yohe v. Barnett to operate in all cases where the-wife made the-declaration. The act required the judge to explain to her “the legal -effect of the declaration,” and for forty years they have discharged that duty by telling her that the effect was to carry from her forever all her interest. Walters’ Estate, 2 Wharton 249, and Byer v. Resser, 5 W. & S. 501, seem to assume that such was the effect.
Then as these parties married before the married woman’s law \Vas. passed (nth April, 1848), the husband’s vested interest was not impaired, by said act; and although partition did not take .place until 1851, stilL the act of 1832 would remain in force to meet such cases. Burson’s Appeal, 10 Harris 164; Stehman v. Huber, 9 lb. 260; Boose’s Appeal, 6 lb. 392. Bachman v. Chrisman, 11 lb. 162; Mann’s Appeal, 14 Wright 381. In all cases where the wife acquires the estate after the nth April, 1848 the act of the 29th March, 1832, 48th section, is inoperative.
It results from this view that the plaintiff cannot recover.