Gaul v. Lauer , 40 Pa. 170 ( 1861 )

The opinion of the court was delivered,

by Lowrie, C. J.

The argument presented, in the opinion of the court, in Zeigler’s Appeal, 11 Casey 182, very clearly requires the affirmance of this decree, and saves us from any further discussion of this case, in that aspect of it. This case is even much clearer than that one, for here the conditions defining the liens to which the sale was subject, were in writing, are expressed in the sheriff’s deed, and have the sanction of a rule of practice of the Common Pleas of thirty years’ standing. This decision makes the purchaser pay exactly according to his purchase, instead of relieving him from $622 of his bid, and leaves the widow her claim unimpaired.

But the argument in the present case, urges upon us a review of the reasoning in Kurtz’s Appeal, 2 Casey 465, and we have been urged to it before. We are very sure that the decision in that case did exact justice to the parties; but the reasoning in which it is founded has ceased to satisfy us. We think now that the widow’s statutory dower ought not to be treated as a lien on land, but as an interest in it, and that for this reason, also, the decree must be affirmed; because then the fixed lien immediately succeeding it, prevents the discharge of even the accrued interest.

We have examined the old Acts of Assembly, 19th April 1794, § 22, 7th April 1807, § 6, and 14th April 1828, § 5, relative to the assignment of the widow’s share in partition, and compared them with the Orphans’ Court Act of 29th March 1832, §§ 41 — ■ 43, and are satisfied that none of them change the character of her estate given by the intestate acts in lieu of dower, but only prescribe the form of assigning it. What her estate really is, is expressed in the Intestate Act of 8th April 1833, § 1: — “ One-third part of the real estate for the term of her life,” and the form in which the law assigns it leaves its character unchanged.

In some cases the amount at which her interest was valued in partition has been incautiously called a lien, when it was not important to distinguish accurately; but at other times it is not improperly so called, that is, when the heirs are claiming it after the widow’s death: 2 Penna. R. 358; 7 W. & S. 275. And in cases where accuracy of denomination was important, it is described as “an interest issuing out of land of the nature of a rent-charge,” and liable to sale by execution: 12 S. & R. 12; 3 Barr 69; 3 W. & S. 458; or, “a defined interest in her late husband’s lands — a freehold estate,” passing to a new husband by marriage in the same manner as dower, and liable to execution for his debts (before the Act of 1848): 11 Harris 163. It is an estate that is given by the intestate laws, and the partition laws do not 'change it, and on this ground, also, the decree is affirmed.

Decree affirmed at the costs of the appellant.

Gaul v. Lauer, is a writ of error raising the same question.

Judgment affirmed.