Thompson's Appeal

36 Pa. 418

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1860
• Status: Published

Opinion

The opinion of the court was delivered by

Lowrie, C. J.

In this case a feigned issue was directed to try by jury a question of law, to wit, “ the right of the widow to her election, &c., as provided for by Act of Assembly.” We should not like to have it supposed that such issues are often tried by jury. • Generally, feigned issues are framed to try definite and clearly defined questions of fact, and they ought always to be so. If the parties cannot, and do not, clearly define the fact in dispute, there ought to be no issue ordered.

No issue was needed here. The land was levied on in the defendant’s lifetime, and regularly sold after his death; the price paid, and the deed acknowledged and delivered. His widow, after that, could-not elect to take her $300, or any of it, out of that land. Against such injustice, even to favour a widow, no argument ought to be expected.

The decree awarding part of the appellant’s land to the widow is reversed, and it is ordered that she pay the costs of the proceeding; and the cause is remitted to the Orphans’ Court, that this decree as to costs may be there enforced.