The opinion of the Court was delivered by
Huston, J.
The plaintiffs were the brothers and sisters, or brother’s children, of John Seider, who died intestate, leaving no children, but a widow, who is the defendant. He died in February 1831, seised of the premises in dispute, viz. a house, and about twenty-two acres and eighty perches of land: it is admitted that the widow is in possession, and has been since her husband’s death.
On the 4th of May, 1834, Samuel Seider, one of the brothers of the deceased, presented a petition to the Orphans’ Court. This petition stated the death of John, leaving neither father, nor mother, nor issue, but brothers and sisters; describing-the property now in suit, and a lot of three acres of woodland; and “ prayed the judgment of the Court on the matter, by inquisition to be awarded, or otherwise, as the Court should think proper, to obtain the same, whether the estate could, or could not, with .propriety be divided; and whether the widow should have a moiety or half part thereof, including the mansion-house, during her natural life; or whether she should hold and receive the rents, issues and profits of one moiety thereof during her life, according to the fourth section of the act of 19th of April, 1794:” whereupon the Court awarded “an inquest to ascertain whether the said real estate can with propriety be divided among the widow and legal representatives of the deceased, in such manner as to give the widow one-half, including the mansion-house.” The inquisition was taken on the 6th of August, 1832, finding that it could not be so divided. On the 16th of September, 1833, the inquisition was confirmed. And after proving, what was not denied, viz. that the widow had been, and is, in possession, and had said she would hold the land as the law would decide, the plaintiffs rested. The defendant then called witnesses to prove, that five or six years ago, in the court-house, there was an agreement between the widow and several of the heirs, (some not being present;) and three men were either chosen by the Court or the parties, to fix the amount of the yearly rent. That the men met, some of them having been notified by Solomon, one of the heirs. That they did fix a certain rent, (a writing containing which was offered and rejected.) One of the referees said, all this fell through because notice was not given to all the heirs.
I think I may fairly conjecture, that it was in consequence of this agreement at Court, that the Court confirmed the informal and [218]*218defective proceeding on the petition ; and that but for this agreement, which rendered any decision of the Court unnecessary, it never would have been confirmed. It is because this agreement was not put on the record, or not reduced to writing and signed by all the plaintiffs, that the parties are subjected to the trouble and costs of this suit. No doubt the judge who then presided, thought either that the brothers then attending and making the agreement, had authority from the others, or would procure their assent in writing. The judge before whom this cause was tried, evidently, and very properly, felt some delicacy in doing what, in effect, was overruling what had been done by his predecessor.
The plaintiffs’ counsel stated certain propositions, and required the opinion of the Court on them. [Here the learned judge stated the propositions and answers.]
It will presently be seen, that where a person dies leaving a widow and no issue, her interest in his lands is in no respect like her dower at common law, except that it is only for her life. No writ of dower lies for this her interest — if it does in any case for the interest of the widow of an intestate in his lands — (it may lie, against a purchaser of lands from her husband after marriage, where she has not executed the deed ; because her children having no interest, no petition for appraisement, or valuation, can be sustained, and unless she could support an action of dower for such lands, she would have a right and no remedy:) but where the husband dies seised and intestate, the better opinion seems to be, that the proceeding must be according to the acts of assemblyand this is such a case.
It would seem necessary to cite, at least parts of several acts relating to this matter; and the rather so, as some of them seemed to have escaped the notice of the plaintiffs’ counsel.
The act of the 19th of April, 1794, after providing for cases where a widow and children are left by an intestate, proceeds in section 4, to say, “ If the intestate leaves a widow and no lawful issue, the said widow shall have one moiety or half part of the real estate, including the mansion-house, during her natural life, except in cases where, in the judgment of the Orphans’ Court, the estate cannot with propriety be divided: and in that case, she shall have and receive the rents and profits of one moiety of the real estate.”'— Evidently this means one moiety of the rents and profits, for how can the rent of one moiety of an estate be ascertained, if it cannot be divided into moieties.
The 22d section states, that “ To prevent any doubts which may hereafter arise concerning the manner in which partition of the intestate’s estate may be made, Be it it enacted,” and proceeds to direct, that on a petition presented by the widow or any of the children, if of age, or by their guardian, &c. and if partition is made, the Orphans’ Court to confirm, “ provided, that where any estate in lands, tenements or hereditaments cannot be divided among [219]*219the children, or widow and children, without prejudice to, or spoiling the whole, the inquest shall make a just appraisement thereof to the Orphans’ Court;” and then proceeds to say, that it maybe awarded to the eldest son, or if he refuses, to the others in succession, paying or securing the shares to the other children : “ but where 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 purpart or share of the estate shall be valued, but the same, together with the interest thereof, shall be and remain charged upon the premises, and the interest thereof shall be annually and regularly paid by the eldest son, or such other child to whom the said lands shall be adjudged, his or her heirs or assigns holding such lands ; to be recovered by such mother by distress, or otherwise, as rents are recovered,” &c. The same section goes on to provide for a case in which, although the estate cannot be divided among all the children, yet it may without prejudice to or spoiling the whole, be so divided as to accommodate more than one, in which case it is to be allotted; the choice being first offered to the eldest son, and the others in succession, and if no son will take, or there are no sons, to the daughters in succession, the elder having the first choice : “ or in case the intestate left no issue, the same may be assigned to as many of the next of kin to the intestate, as such estate will conveniently accommodate, without prejudice to, or spoiling the whole, (preference being given to the male heirs among such as are of kin in equal degree,) &c. &c. The said children, or next of kin, to whom the said estate shall be so assigned, or some friend for them, paying, or securing to be paid, to the other children of the intestate, their respective parts of the value thereof, in the same manner as hereinbefore directed, where one of the children takes the whole estate.”
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The opinion of the Court was delivered by
Huston, J.
The plaintiffs were the brothers and sisters, or brother’s children, of John Seider, who died intestate, leaving no children, but a widow, who is the defendant. He died in February 1831, seised of the premises in dispute, viz. a house, and about twenty-two acres and eighty perches of land: it is admitted that the widow is in possession, and has been since her husband’s death.
On the 4th of May, 1834, Samuel Seider, one of the brothers of the deceased, presented a petition to the Orphans’ Court. This petition stated the death of John, leaving neither father, nor mother, nor issue, but brothers and sisters; describing-the property now in suit, and a lot of three acres of woodland; and “ prayed the judgment of the Court on the matter, by inquisition to be awarded, or otherwise, as the Court should think proper, to obtain the same, whether the estate could, or could not, with .propriety be divided; and whether the widow should have a moiety or half part thereof, including the mansion-house, during her natural life; or whether she should hold and receive the rents, issues and profits of one moiety thereof during her life, according to the fourth section of the act of 19th of April, 1794:” whereupon the Court awarded “an inquest to ascertain whether the said real estate can with propriety be divided among the widow and legal representatives of the deceased, in such manner as to give the widow one-half, including the mansion-house.” The inquisition was taken on the 6th of August, 1832, finding that it could not be so divided. On the 16th of September, 1833, the inquisition was confirmed. And after proving, what was not denied, viz. that the widow had been, and is, in possession, and had said she would hold the land as the law would decide, the plaintiffs rested. The defendant then called witnesses to prove, that five or six years ago, in the court-house, there was an agreement between the widow and several of the heirs, (some not being present;) and three men were either chosen by the Court or the parties, to fix the amount of the yearly rent. That the men met, some of them having been notified by Solomon, one of the heirs. That they did fix a certain rent, (a writing containing which was offered and rejected.) One of the referees said, all this fell through because notice was not given to all the heirs.
I think I may fairly conjecture, that it was in consequence of this agreement at Court, that the Court confirmed the informal and [218]*218defective proceeding on the petition ; and that but for this agreement, which rendered any decision of the Court unnecessary, it never would have been confirmed. It is because this agreement was not put on the record, or not reduced to writing and signed by all the plaintiffs, that the parties are subjected to the trouble and costs of this suit. No doubt the judge who then presided, thought either that the brothers then attending and making the agreement, had authority from the others, or would procure their assent in writing. The judge before whom this cause was tried, evidently, and very properly, felt some delicacy in doing what, in effect, was overruling what had been done by his predecessor.
The plaintiffs’ counsel stated certain propositions, and required the opinion of the Court on them. [Here the learned judge stated the propositions and answers.]
It will presently be seen, that where a person dies leaving a widow and no issue, her interest in his lands is in no respect like her dower at common law, except that it is only for her life. No writ of dower lies for this her interest — if it does in any case for the interest of the widow of an intestate in his lands — (it may lie, against a purchaser of lands from her husband after marriage, where she has not executed the deed ; because her children having no interest, no petition for appraisement, or valuation, can be sustained, and unless she could support an action of dower for such lands, she would have a right and no remedy:) but where the husband dies seised and intestate, the better opinion seems to be, that the proceeding must be according to the acts of assemblyand this is such a case.
It would seem necessary to cite, at least parts of several acts relating to this matter; and the rather so, as some of them seemed to have escaped the notice of the plaintiffs’ counsel.
The act of the 19th of April, 1794, after providing for cases where a widow and children are left by an intestate, proceeds in section 4, to say, “ If the intestate leaves a widow and no lawful issue, the said widow shall have one moiety or half part of the real estate, including the mansion-house, during her natural life, except in cases where, in the judgment of the Orphans’ Court, the estate cannot with propriety be divided: and in that case, she shall have and receive the rents and profits of one moiety of the real estate.”'— Evidently this means one moiety of the rents and profits, for how can the rent of one moiety of an estate be ascertained, if it cannot be divided into moieties.
The 22d section states, that “ To prevent any doubts which may hereafter arise concerning the manner in which partition of the intestate’s estate may be made, Be it it enacted,” and proceeds to direct, that on a petition presented by the widow or any of the children, if of age, or by their guardian, &c. and if partition is made, the Orphans’ Court to confirm, “ provided, that where any estate in lands, tenements or hereditaments cannot be divided among [219]*219the children, or widow and children, without prejudice to, or spoiling the whole, the inquest shall make a just appraisement thereof to the Orphans’ Court;” and then proceeds to say, that it maybe awarded to the eldest son, or if he refuses, to the others in succession, paying or securing the shares to the other children : “ but where 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 purpart or share of the estate shall be valued, but the same, together with the interest thereof, shall be and remain charged upon the premises, and the interest thereof shall be annually and regularly paid by the eldest son, or such other child to whom the said lands shall be adjudged, his or her heirs or assigns holding such lands ; to be recovered by such mother by distress, or otherwise, as rents are recovered,” &c. The same section goes on to provide for a case in which, although the estate cannot be divided among all the children, yet it may without prejudice to or spoiling the whole, be so divided as to accommodate more than one, in which case it is to be allotted; the choice being first offered to the eldest son, and the others in succession, and if no son will take, or there are no sons, to the daughters in succession, the elder having the first choice : “ or in case the intestate left no issue, the same may be assigned to as many of the next of kin to the intestate, as such estate will conveniently accommodate, without prejudice to, or spoiling the whole, (preference being given to the male heirs among such as are of kin in equal degree,) &c. &c. The said children, or next of kin, to whom the said estate shall be so assigned, or some friend for them, paying, or securing to be paid, to the other children of the intestate, their respective parts of the value thereof, in the same manner as hereinbefore directed, where one of the children takes the whole estate.”
No doubt, that although the widow is not named in the last clause, he who drew the law thought she was included in the phrase “ in the same manner as hereinbefore directed,” — but doubts were suggested, and to remove this one, and some others, the act of the 6th of April, 1797, was passed; the 8th section of which follows : “ Like proceedings may be had where the intestate leaves no children or their legal representatives, both in making partition, or where the estate cannot be divided without prejudice to or spoiling the whole, by directing an appraisement, and ordering the whole to the eldest brother or his issue, if any such shall be of full age, if he or she shall accept it, or to any other of the brothers or their issue successively, if any such shall be of full age, upon the refusal of the eldest brother or his issue; (and the same provision for females if all the brothers refuse, or there are no brothers,) in the manner and on the condition directed by the act to which this is a supplement, with respect to the children of the intestate. And the same mode of [220]*220dividing, assigning and appraising estates shall be observed in all cases where by this act, or the act to which this is a supplement, estates are to be vested in several persons as tenants in common.” It may be here observed, that those to whom the real estate of an intestate descends, are repeatedly called tenants in common, in both the original and supplementary acts. And here again one would suppose all pases were provided for; but as the widow was not expressly named, doubts were expressed — and it is strange that they were listened to — whether she was included in the words, “ in like manner, and on the condition directed by the act to which this is a supplement.” It would seem to have required some time to raise this difficulty, or to find any person to believe it was one. On the 7th of April, 1807, however, another act was passed, as follows: Section 6. “ When partition is made of an intestate’s real, estate, and a part is allotted to each of his children, or representatives, in case there be a widow of the intestate living and entitled to a part of the said real estate, during her life, it shall be the duty of the inquest or referees making partition, to estimate the value of the said part, and to apportion the same among the respective shares of the children or representatives; and upon the confirmation thereof by the Orphans’ Court, the same shall remain a charge upon the said shares ; and the interest thereof shall be annually and regularly paid to such widow, and may be recovered by action of debt or distress, as rents are usually recovered in this commonwealth: and when the estate is divided into fewer parts than there are children or representatives, the same proceeding shall be had to estimate and apportion the value of the widow’s purpart among the said parts, which shall remain a charge thereon; and the interest thereof shall be paid, and may be recovered as aforesaid: and upon the decease of any'such widow, the whole value of the said purpart shall be distributed among all the children or representatives, in proportion to their respective shares, according to law.”
It had sometimes happened, that when an estate was found by the inquest incapable of division, and was appraised, that no one of the children or representatives would take it at the appraisement. On the 2d of April, 1804, an act was passed prescribing proceedings on which the Orphans’ Court might order it to be sold; and the Court on a sale, are directed to distribute the price according to law and justice; but as that act did not expressly provide for the case where the estate was divided into fewer parcels than there were heirs or representatives, this last act provided, in section seven, “ Where the estate of an intestate is divided into fewer number qf parts than there are children or representatives, and any or all of the .said parts is or are refused to be taken by the children or representatives, the like proceedings shall be had to sell the parts so refused, as is directed in case of the appraisement of the whole, in and by an act of the 2d of April, 1804.”
[221]*221These laws being on the same subject, are to be construed as if all embraced in the same act; and will be found to provide for all cases which can occur in the disposition of the real estate of an intestate: at least they provide for the case before us, in a manner sufficiently plain to enable us to dispose of this case. In every instance in which land cannot be-apportioned equally, or according to their rights, among the children or representatives of the intestate, the first, and all succeeding acts, require an appraisement of the whole, if not capable of division without prejudice to and spoiling the whole; and of each part if it is susceptible of division into fewer parts than there are children, or if into as many parts as there are children. See 1 Serg. & Rawle, 460. And if in any of these cases an appraisement is not made, the inquisition is radically defective, and must be quashed or set aside, as contrary to express enactment; and for the further reason, that it arrests all further effect of the proceeding to divide the estate, and all further action by the Court. In every instance which I have known or heard of, such an inquisition has at once been set aside by the Court; and I have said, would no doubt have been set aside in this case, if an agreement had not been made, which rendered any further action of the Court unnecessary; which agreement being left incomplete, from ignorance or ill-judged parsimony in not consulting counsel, has occasioned this suit.
I am aware that in Young v. Bickell, (1 Serg. & Rawle, 460,) it has been supposed Judge Tilghman expressed a doubt as to the power of the Orphans’ Court to make partition between the widow and representatives, where there are no children. In that case there was a widow, no children, but a father to whom the part not given to the widow went during his life; and to whom the widow’s part also went, if she died before him: and the doubt was, whether the acts of assembly provided for such a case, where only tenants for life were parties to the partition; and he says the acts contain “ expressions of large import respecting partitions, and I suppose there was a general intention of authorizing partition in all cases where the real estate descended to several persons. Yet I see difficulties in the present case where the whole estate goes in the first instance to tenants for life.”
Judge Yeates was decidedly of opinion that the acts of assembly embraced every case and observed “ that those in reversion had notice even before the Court objecting to the gross inequality of the partition.” It was set aside by the unanimous opinion of the Court for this inequality. Now the doubt of Judge TiLGHKrAtr was confined to the case where only tenants for life were before the Court, and whether a partition between them ought to bind those in reversion.
In the case before us, the question is, whether the brothers and sisters having presented a petition for division only, or whether [222]*222she shall be entitled to one-half of the rents and profits during her life — a form of petition not sanctioned by law or practice; and the Court having awarded an inquest to ascertain “ whether it could with propriety be divided to and among the legal representatives of the deceased, in such manner as to give the widow one-half, including the mansion-house;” and the inquest having returned “ that the real estate of the deceased cannot with propriety be divided so as to give the widow one-half, including the mansion-house and the Court having confirmed this, the question I say is, whether in such case, the brothers and sisters can by ejectment recover the whole or one-half of 'the estate? the widow never having resisted or denied their claim or right according to law. If they could so recover, what would be done next? Would they bring a writ of partition at common law? The acts expressly forbid this. They must then petition the Orphans’ Court under and according to the acts of assembly; but they could have done this before bringing the ejectment: it was then useless; it was more, it was vexatious and oppressive, and against the express provision of the act of 1794, which says, “to prevent disputes concerning the manner in which the partition of the intestate’s estate may be made and also the 8th section of the act of 1797, which says, “ and also the same mode of dividing, assigning and appraising estates shall be observed in all cases, where by this act, or the act to which this is a supplement, estates are to be vested in several persons as tenants in common”; now this estate is vested, or to be vested, in the collateral heirs of the deceased as tenants in common; and the widow may not be a tenant in common with them, she has an interest by the law, subject to which it must in some manner vest in them. Whether this interest shall be a life-estate or one-half of the real estate, including the mansion-house, or shall be the interest of one-half of the price at which it shall be appraised or sold, must depend on the future procedings in the Orphans’ Court. Her right to the possession of the mansion-house is given by act of assembly; it has no connection with or dependence on the right of a widow at common law. It may cease by an inquest finding the property cannot be divided without prejudice to or spoiling the whole, and an appraisement, and the land being taken at the appraisement by one of the heirs, and on adjudication charging her interest on the land; or by a sale and appropriation of the interest of half the price to her use during life ; and not until, in some of these ways, her rights are ascertained and secured.
This vie w of the case, which is substantially as it was considered in the Court below, puts an end to the plaintiffs’ ejectment, and supercedes the necessity of a particular notice of the points propounded to the Court, and the answers thereto.
Judgment affirmed.