Baldwin v. Siner , 16 Pa. Super. 8 ( 1901 )

Opinion by

William W. Porter, J.,

Harland Baldwin, being the owner of a certain farm, died intestate in 1869. He left a widow and six children, of whom Zachary was one. In partition proceedings in 1869, Zachary accepted the land in question at the valuation, and entered into a recognizance for the payment of $4,692 at his mother’s death to the heirs and legal representatives of Harland Baldwin, deceased. He afterward conveyed the land to his mother, subject to the payment of the $4,692 “ to the heirs and legal representatives of Harland Baldwin, deceased, at the death of his widow, in accordance with the terms of the recognizance of the said Z. T. Baldwin, of record in the orphans’ court of Chester county.” Subsequently, judgment was- obtained upon the recognizance and the land sold by the sheriff as the land of Z. T. Baldwin. The purchaser, one Chamberlain, sold the land to Siner, the present defendant, by a deed in which there is this clause: “ Sold subject to the dower of $4,692 charged upon the property, the interest of which, at six per cent, is payable yearly and every year to the widow of Harland Baldwin, deceased, and at her decease, the said dower is to be paid to the parties legally entitled thereto, and which said dower is a part of the purchase money above mentioned.” The widow of Harland Baldwin died in 1899. Zachary Baldwin now sues Siner, claiming to be entitled to share in the $4,692, made payable by the death of the said widow. He is not so entitled. His right as an heir to participate in the dower charge merged in his title to the land: Hollenberger v. Yaukey, 145 Pa. 179; Reigle v. Seiger, 2 P. & W. 340; Shelly v. Shelly, 8. W. & S. 161. All of his interest passed to Chamberlain by the sale of the land by the sheriff: Erb. v. Huston, 18 Pa. 369; Reigle v. Seiger, supra; Fretz v. Heller, 2 W. & S. 397; Dull’s Estate, 137 Pa. 116. We are not concerned with the question whether under the deed of Chamberlain to Siner, the right to Zachary’s portion of the dower interest passed. It is enough to ascertain that Zachary, himself, has here no standing to sue, since he has been shorn of his whole interest in the land, which included his share of the dower charge. Dech v. Gluck, 47 Pa. 403, cited by the appellant, is not in point. In that case the interest of the recognizor in the charge was preserved by express condition imposed by the orphans’ court in ordering the sale.

Error has been assigned to the refusal of the court to permit the introduction of testimony showing what disposition Siner had made of the dower moneys since the death of the widow. This testimony was inadmissible, since the plaintiff’s concern in such an inquiry was shut off by the sale and the extinction of his interest in the fund. It is also complained that testimony was excluded by which it was attempted to prove that Zachary Baldwin took the real estate in the partition on behalf of his mother. The evidence did not purport to appear of record in the line of the title of the defendant. The effect of it would be to fasten a trust upon the plaintiff’s original title in favor of the widow, in the absence of a writing, and to the injury of an innocent third party, acquiring title without notice, through a sheriff’s sale. Such evidence was properly excluded.

As we discover no error in the record, the judgment of the court below is affirmed.