Turner v. Hauser , 1 Watts 420 ( 1833 )

The opinion of the Court was delivered by

Rogers, J.

When partition is made of an intestate’s real estate, and there is a widow living, and entitled to a part of the real estate during life, an estimate is made of the value of her part, which is apportioned in the manner prescribed by the act of the 7th of April 1807. On confirmation, the ascertained value is directed to remain a charge on the shares of the children or representatives, the interest of which the court orders to be annually and regularly paid to the widow. When there is a failure of payment, the interest of the widow may be recovered by action of debt, or by distress, as rents are usually recoverable in this commonwealth. In pursuance of the act referred to, the orphan’s court of Schuylkill county adjudged a certain tract of land to the plaintiff’s intestate, and charged the same with the payment of 1000 dollars, the interest to be paid to the widow during life. Jacob Hauser the younger died intestate and insolvent. The act makes the interest of the widow a charge on the real estate : and if that were the fund to be affected, a different case might be presented ; but here the widow demands satisfaction out of the personal assets. The legislature say, that the annual charge may be recovered by action of debt, or by distress, as rents are usually recoverable in this commonwealth. Had the widow brought an action of debt against the administrators, it would scarcely be contended that she would be entitled to more than her share of the assets, and in the order prescribed in the act for the payment of debts. And it is equally plain, that had no distress been made, the administrators would not have been justified in paying more than one year’s interest, as in case of rent. What meaning then must we attach to the words—to be recovered by action of debt, or by distress, as rents are usually recoverable in this commonwealth. The fair construction, I take it (and it is one in her favour), is to place her in the situation of a landlord, and to give her the same remedy a landlord has against a tenant. The extent of this is given in the fourteenth section of the act of 1794. First, physic, funeral expenses, and servants’ wages are to be paid; and secondly, rents, not exceeding one year. Without the benefit of this construction, the widow would be only entitled to payment as a lien or judgment creditor. The remedy which the landlord may choose to adopt can not alter the case; for otherwise, in all cases where the rent was in arrear longer than one year, he would of course distrain, and in this way defeat the order of payment prescribed in the act. The rights of parties ought not to depend on the nature of the remedy, as was decided in Lesher v. Levi, 15 Serg. & Rawle 108. No act of the parties after the death of an intestate can vary the rights of creditors.

Judgment affirmed.