Kelly v. Mahan

2 Yeates 515

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1799
• Status: Published

Opinion

By the court.

We are satisfied, there has been no previous adjudication on this point. We have gone too far into the improvement doctrine, to exclude a widow from her claim of dower of lands, held under such equitable, though imperfect title, so frequently recognized by the laws and usage of this state: — Ejectments have frequently been supported under such rights: and it has been determined, that a prior improvement under Pennsylvania, shall prevail against a Yirginia certificate, under the compact between the two states. The sale of improved lands for payment of debts, by an administrator in modern times, without an order of Orphan’s Court has also been declared by us to be void. With what propriety then, can we consider lands held by settlement and improvement, as real estate sanctified by law and custom, as to all other purposes, except the solitary instance of the dower of the widow, who has in most cases been highly instrumental in building up the title? Common justice forbids it! We cannot avoid setting aside the nonsuit.