Diefenderfer v. Eshleman , 113 Pa. 305 ( 1886 )

Mr. Chief Justice Mercur

delivered the opinion of the Court,

A tenant in dower at common law has an estate and not a mere lien : Ziegler’s Appeal, 35 Pa. St., 173. So under our intestate laws a widow’s statutory dower is an interest in the land, not merely a lien: Miller v. Liedig, 3 W. & S., 458; Bachman v. Chrisman, 23 Pa. St., 162; Schall’s Appeal, 40 Id., 170; Gourley v. Kinley, 66 Id., 270.

Section 41 of the Act of 29th March, 1832, declares if the widow of the decedent he living at the time of the partition of Ms real estate, she shall not be entitled to payment of the sum at which her purpart or share of the estate shall be valued ; but the same, together with interest thereof, shall be and remain charged on the premises, and the legal interest thereof shall be annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs and assigns.

The remedies of the widow for the collection of her dower are cumulative: Medlor v. Aulenbach, 2 P. & W., 359. She may collect by distraining or proceed on the recognizance, or other obligation given by the person to whom it was allotted, or bring assumpsit against his assignee: Pidcock v. Bye, 3 Rawle, 183; De Haven et al. v. Bartholomew, 57 Pa. St., 126.

Each of the several Acts of 1794, 1807, 1828 and 1832 relate to the assignment of the widow’s share in partition. No one of them however changes the estate given to her by the intestate laws in lieu of dower; but only prescribes the form of assigning it: Schall’s Appeal, supra.

The legislative command that the money for her share in the land shall remain charged thereon, withholds from the Orphans’ Court in awarding partition, all power to decree otherwise, unless her consent be procured in such manner as to pass her estate in the land: Fisher v. Keen, 1 Watts, 178. No such consent was given in this case.

The assignee is in no better position than the original purchaser. The Act of 1832 cited, expressly extends the same liability to him. He was bound to take notice of the decree of partition, which is in the line of his title. Here, however, the defendant had actual notice of the widow’s estate in the land, and of her claim to the annual interest thereon.

Under proceedings in partition by the heirs of J. J. Snyder, the intestate, the real estate was sold to one Daniel F. Snyder, and confirmed by the Court. Before a deed therefor was delivered to him, he entered into a written agreement under seal with the defendant for a sale of the land to the latter, in consideration of $3,875 — agreed to be paid therefor, to wit, $1,652- — on the delivery of “these presents,” and the balance on the first day of April then next, “less the dower, which will remain cm the said premises, to the widow of J. J. Snyder, deceased; but the interest to said widow during bor life,” “subject also to the dower of Jacob Snyder on said premises.”

When Daniel afterwards executed a deed to the defendant it does not appear that a reference was therein made to the dower of the plaintiff. Whether that may affect the vendor on the covenants in his deed is a question not now before us. Certain it is, that does not relieve the defendant from the express notice he had received of the estate and claim of the defendant.

We discover nothing in the evidence to estop the plaintiff from maintaining this action. The fact that she had notice of the rule to show cause why the property should not be sold, works no estoppel against her. The result of that sale would determine the annual sum which she would be entitled to receive ; but it could not affect the character of her estate, nor deprive her of all appropriate remedies for the enforcement of her rights.

The omission in the deed from the administrator to Daniel F. Snjder, to refer to the plaintiff’s right of dower, and the fact that Daniel paid the whole purchase money to the administrator, and the additional one that when the defendant accepted the deed he understood from his vendor, or the scrivener who drew it, that the land was clear from incumbrance, are all irrelevant, and the evidence thereof was improper^ admitted. The plaintiff was not a party to nor present at any of those transactions. The acts and declarations of other persons could not impair her estate in the land, nor destroy her remedies for the collection of the sum given her by law.

The learned judge therefore erred in taking the case from the jury, and in instructing them to find for the defendant.

Judgment reversed and a venire facias de novo awarded.