Baker v. Leibert

17 A. 236, 125 Pa. 106, 1889 Pa. LEXIS 697

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1889
• Docket: No. 29
• Status: Published

Opinion

Opinion,

Mr. Chief Justice Paxson :

The right of a widow to recover her arrearages of dower by distress is as old as the common law. This remedy is allowed “ where rent is granted to a widow out of lands, of which she is dowable, in lieu of dower: the law considers the rent or owelty in such cases a charge of common right, because a valuable consideration, that is, a right that the party had in the lands charged has been given for it, and, therefore, the law gives a remedy by distress for the recovery of it: ” Shouffler v. Coover, 1 W. & S. 400; citing Litt., §§ 58, 213, 214, 216; 1 Inst. 47 a, 142 a, 169 b; Gilbert on Rents, 20. The act of 29th March, 1832, P. L. 202, provides as follows: “ Should the widow of the decedent be living at the time of the partition, she shall not be entitled to payment of the sum at which her purpart or share of the estate shall be valued, but the same, together with interest thereof, shall be and remain charged upon the premises, and the legal interest thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs and 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.” It will thus be seen that where the widow’s interest in real estate is secured by recognizance in cases of partition, tbe remedy by distress is given.

I think it may be safely stated as a general proposition, that where the dower of the widow is lawfully assigned or secured to her, whether by the Orphans’ Court, the Court of Common Pleas, or by the agreement of the parties in interest, the dower or annual interest due the widow may be recovered by distress : Murphy v. Borland, 92 Pa. 89; Borland v. Murphy, 4 W. N. 472; Evans v. Ross, 107 Pa. 281. The learned judge below held that the widow of C. H. Knauss was not entitled to dis-train for her arrears of dower, for the reason that she was not the widow of Charles L. Knauss whose estate was the subject of the partition, but the widow of one of the heirs upon whom the descent had been cast by the death of the said diaries L. Knauss, and that the act of 1882 only gave the right of distress to the widow of the person who died seised, and whose real estate is being partitioned. If this were all there was in the case we might be disposed to adopt the view of the court, but we learn from the opinion of the learned judge that “in 1872 a petition was presented to the Orphans’ Court, signed by all the parties in interest, praying for the partition of the real estate of which Charles L. Knauss was seised at the time of his death. Commissioners were thereupon appointed, who reported that the real estate could not be divided, and they valued and appraised the same. Purpart No. 1, the real estate affected by this issue, was appraised at $12,000; Maria E. Leibert accepted this purpart No. 1 at said valuation of $12,000, and entered into recognizances in the sum of $24,000 to pay to the other heirs their just share of the consideration money. Helena Baker, the widow of- C. Henry Knauss, and the present defendant, was entitled to receive $79.06 annually on account of her interest in the said purpart No. 1, as the widow of C. Henry Knauss, one of the sons Charles L. Knauss.” It thus appears that not only the estate of Charles L. Knauss was parted and divided by these proceedings, but the dower interest of the widow of Charles H. Knauss in the real estate of her deceased husband was also ascertained. There was a partition within a partition, or, to speak more accurately, a sub-partition in which the dower of the widow of an heir was ascertained. That such partition could have been lawfully made upon the petition of the latter, admits of no doubt.

When diaries L. Knauss died, the descent was cast upon his son Charles IT. Knauss of an undivided interest in his father’s real estate. That interest was the subject of partition upon the petition of Charles IT. during his life, or of his widow after his death. In the latter case the partition would have been of tlie estate of Charles H. Knauss, and his widow would have tlie right to distrain by the terms of the act of 1832. The partition proceedings as they stand were perhaps irregular. They were not void, however, nor are they even voidable. It appears by that record that the Orphans’ Court had jurisdiction, and that all persons in interest were parties to the proceeding. Even if the partition were voidable it could not be questioned in this collateral proceeding. It was a valid partition not only of the real estate of Charles L. Knauss, but also of the estate of C. II. Knauss, in which the dower interest of liis widow was ascertained. I am unable to see, therefore, why she has not the right to distrain under the act of 1832. If this wore not so, the right of distress is a common law incident to dower whenever such dower is lawfully fixed and ascertained, either under the act of assembly or by the agreement of all the parties in interest.

We are here met with tlie proposition that such a view might render tlie same property liable to dower at the suit of two widows. In this case no such difficulty can occur, as the widow of C. L. Knauss was dead when these proceedings were commenced. Were she living it is undoubtedly true that the whole estate of C. L. Knauss would be subject to her dower, while a portion thereof, viz.: that which descended to C. H. Knauss, would also be subject to the dower of his widow, the present plaintiff in error. From this circumstance, it is said that various questions might arise in regard to the relative rights of the two widows, particularly as the right of distress is incident to each. This is an embarrassment with which we need not concern ourselves now. There may be many instances in which the same land is subject to the dower of two widows, and when such case arises, I apprehend the law will be sufficient to dispose of any question arising out of their conflicting rights.

We are of opinion that the warrant of distress in this case was lawfully issued.

The judgment is reversed, and a procedendo awarded.