Medlar v. Aulenbach

The opinion of the court was delivered by

Rogees, J.

In the act of the 19th April, 1794, the legislature has provided, “That when the whole premises shall be adjudged to the eldest son, or any of the children, 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 Orphans’ Court oÍ Berks county, in accordance with the directions of the act adjudged the real estate of the intestate, to his eldest son, and ordered the bond to be executed, which has give rise to this controversy. That the sum at which the widow’s share was appraised, is a lien on the premises, it is impossible to doubt; nor do I understand the Court of Common Pleas, to deny this proposition. In the 22d section, it is enacted that when 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 pur-part, or share of the estate, ordered to the eldest son, or any of the children shall be valued, but the same together with the interest, *359shall be and remain charged upon the premises, and the interest thereof, shall be annually and regularly paid by the eldest son, to be recovered by such mother, by distress or otherwise, as rents in this commonwealth are usually recovered, during her natural, life, which provision the said mother shall accept and receive in lieu, and full satisfaction for her dower, at common law. As the legislature have thought proper, in introducing a new system, to divest the right given her by the common law, they have, at the same time, taken effectual care of her interest, by creating a statutory lien) to the extent of the value of the purpart, which together with the interest, is to remain charged on the premises: and as the death of the widow may occur at an indefinite" period of time, they have also extended the lien to the heirs and legal representatives; in this respect, making a distinction between the purpart of the widow and the share of the heirs of the intestate. Nor do the case’s cited, Walton v. Willis, 1 Dal. 265; Kean. v. Franklin, 5 S. R., 155, interfere with this construction. In these cases, the court has reference to the ,purparts of the heirs, which are placed on a different footing from the share allotted to'thc widow. In Walton v. Willis, Chief Justice McKean condemns the practice of taking bonds, which, independent of the act, are a personal security, and recommends a recognizance by which the lands themselves would be bound for the payment of the distributive shares. And 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 difficult to misapprehend, a security provided for her, of which thecourt,even ifthey had so intended, cannotdeprive her. The court of Common Pleas decided that the acceptance of the bond, with security for tlie payment of the share in question, after the death of the widow, was a waiver by the heirs of any charge on the land, created by the act - of assembly, and that after the acceptance of the bond, with security, the only remédy for the heirs, was upon the bond. In this opinion, we. cannot concur. As I before intimated, I do not look upon this proceeding as the act of the party, but I view the bond, as taken in pursuance of a decree of the court. Nor is there in this, particular, any difference between the rights of the widow and the heirs. The act places them in the same situation for the reason which has been before given. The heirs could not do otherwise than accept the bond after the decree. It would not be in the power of the court to divest the lien of the widow and heirs in the teeth of an act so express as the present, and it seems.to me,.it is not using them fairly in supposing they had any such intention. In the bond, which *360in the absence of all proof to the contrary, I take to be the act of the court, it is said that upon its sealing and delivery, the said Jacob Albert, should hold and enjoy the real estate, valued to him, his heirs and assigns forever, according to lato, &c.

We must then refer to the act of 1794, to ascertain the title to the premises, by which it is clear that Jacob Albert acquires an estate in fee-simple, subject however to the widow’s dower or pur-part, the interest to be paid to her annually as rents, and the principal to the heirs and legal representatives after her death. But it is said, the acceptance of the bond with security, is a waiver of the lien, but I cannot perceive how this result can be produced under the circumstances, particularly, if the acceptance of the heirs, is in conformity to a decree of the court requiring security; so far from indicating any intention to part with thelien, it is in its nature cumulative; for as a matter of precaution, it may sometimes be the duty of the court to order additional security to guard against accidents, from fire or other casualties. To take from the-widow and heirs, a real security created for their benefit, would require much more unequivocal evidence of intention, than is disclosed in the circumstances here presented; for if this is to be resolved into a question of intention, it might be difficult to prove, that by adopting this form, rather than a recognizance, the parties intended to relinquish any right given by the statute.

Judgment reversed, and venire de. novo awarded.