Vensel's Appeal , 2 Foster 279 ( 1874 )

Chief Justice Agnjew

delivered the opinion of'the court,

This case in nearly all its features is governed by the decision in Horam’s Estate, 9 P. F. Smith 152. There, though the practice would be better to give notice to the widow and heirs of the awarding of the partition, it is held to be unnecessary, it being sufficient, if it appear at the return of the writ and inquisition taken, that the parties had notice, at which tiffie it is competent to make objections to the right of partition as well as to the partition itself. In regard to the subsequent rules to accept or refuse, and show cause against a sale, the law does not require service to be made by the sheriff. It may be made by the party or other person. The conclusiveness of the decrees of the Orphans’ Court upon matters within its jurisdiction have been so often asserted and repeated it is unnecessary to cite authority for this well known principle. The distinction upon which the application of this principle depends has been well stated in Richards v. Rote, 18 P. F. Smith 253, by our brother Sharswood, that when the name of a party in interest does not appear in the petition, decree and notices, unless it appears by affidavit that his name is unknown, and publication made accordingly (under the Act of 1835) his share or estate will remain undivided, or undivested if there is a sale ordered, unless by some subsequent act or conduct of such party, or those claiming under him, it has been ratified. But when his name does appear, it will be conclusively presumed in favor of the regularity of the proceedings of a court of justice, that due and regular notice has been given, even though it is not affirmatively shown in the record.

Now in this case the widow was made a party to the petition, and to the writ of partition itself; and in the sheriff’s return of the inquisition taken he recites that the parties in the writ were served and warned to appear. This inquisition setting forth that the premises could not be divided, and returning a valuation thereof, was approved by the court. The confirmation after partition or sale has all the effect of a final decree, and is conclusive of the facts set forth in the proceedings which led to the decree. This is sufficient to bind the widow, for the sale was a legal conversion and divested her interest. The order of sale recites the rule on all the heirs and legal representatives to accept or refuse the premises at the valuation, and the rule to show cause why the real estate should not be jold, and that due proof was made of the service of the rule according to the Act of Assembly. This is the act of the court by way of recital in the order and is evidence of notice. It is true there is found in the record only the copy of the rule on the heirs to accept or refuse, the rule to show cause against the sale not being returned with the record.. But this occurred twenty years and more ago, and the presumption from the recital in the order of sale is, that both rules were issued and served, the clerk having issued them separately. This is a matter of mere practice, and may have arisen from the fact, that as the widow cannot accept premises not divided, but valued and appraised, the necessity for naming her in the rule to accept or refuse, was supposed to be unnecessary. When the premises are accepted they are taken at the valuation fixed by the jury, or now at an advanced bid by one or more of the heirs. But the presumption is that in the rule to show cause against the sale her name did appear, for in the sale the widow has a direct interest, and the recital of service on the heirs and legal representatives is conclusive of the service on the widow, as a legal representative, this being real estate, and the term, legal representatives, having therefore no application to the personal representatives.

But be the fact as it may the presumption of notice to the widow from the recital in the order of sale must be taken to be true. After twenty years it would be a harsh rule that would deprive an innocent purchaser of his estate because the papers are not all on file in the Orphans’ Court. It is proper to add also that the deed to the purchaser recites the proceedings as regular, and as showing the widow a party and notice to all parties.

The recital in the petition of the administrators of John Vensel, deceased, the purchaser at the Orphans’ Court sale, to sell for the payment of his debts, that the property was subject to the dower of Susan Vensel, the widow of Jacob Vensel, deceased, does not change the nature of her estate, which is fixed by the law on an acceptance by the heir, or a sale to a purchaser. The calling of it “dower” is but an ignorant use of a word common in all the country to designate the widow’s estate in the real estate of her husband.

But her husband having died intestate and seised, her estate never was dower, and the incorrect use of the term in a subsequent proceeding cannot possibly change the effect of the proceeding in the Orphans’ Court which converted her estate into a money charge upon the premises sold, with the remedy for collection given in the law. In no possible view of this case can the proceedings in the Orphans’ Court be overturned. Ths assignee of the widow occupies no higher place than she did, and must recover according to the nature of her estate only.

Decree of the Orphans’ Court affirmed, with costs to bo paid by the appellant, and the appeal dismissed.