Wistar's Appeal , 1884 Pa. LEXIS 114 ( 1884 )

Mr. Justice Sterrett

delivered the opinion of the court, October, 6, 1884.

One of the questions involved in this contention is whether the commissioners nominated by the children and heirs at law of a decedent, and appointed by the Orphans’ Court to make partition of the real estate of which their father died seised, after having divided the land into as many purparts of equal value as there are heirs, have the power to allot to each child respectively, by name, one of said purparts. The learned president of the Orphans’ Court held they had, and in this he was clearly right.

The provisions of the Act, March 29, 1832, revising and consolidating previous enactments relative to partition in the Orphans’ Court, and the course of practice thereunder for more than half a century, ought to be sufficient to preclude any doubt as to the power .in question. The thirty-sixth section of the Act empowers the Orphans’ Court of the county where the real estate of a decedent is situate, “ on application of the widow or any lineal descendant having an interest in such real estate, etc., to appoint seven or more disinterested persons, chosen on behalf and with the consent of the parties, or, when the parties cannot so agree, to award an inquest to make partition of the real estate of such decedent, and, upon the return made by the persons so appointed, or of the inquisition taken, to give judgment that the partition thereby made be firm and stable for ever, and that the costs thereof he paid by the parties concerned ; ” Purd., 433, pl. 186. The Act of 1855 provides that “on the agreement and nomination of the parties the court may appoint three or more commissioners to divide or value the real estate with the same effect as a sheriff's inquisition; ” Purd., 1116, pl. 22. It is very evident the commissioners, whose appointment is thus provided for, are a substitute for the inquest, and hence it follows that their duties are substantially the same. The words “inquest” and “sheriff’s inquisition,” employed in these Acts, are borrowed from the common law, and hence the functions of “ an inquest,” composed of the sheriff and a jury, must he ascertained by reference to common law proceedings in partition. After the interlocutory judgment, quod partitio fiat inter partes, etc., was pronounced, the writ of execution, de partitione f aeienda, issued of course to the sheriff, commanding him to make partition of the premises by the oaths of twelve good and lawful men, to assign the parts in severalty, etc., and to make report to the court under his seal and the seals of the jurors. Then, upon the return of the inquest thus executed, followed the final judgment that the partition so made be and remain firm and stable for ever: 1 Thomas’ Coke Litt., 699, et seq.; 2 Minor’s Inst., 416.

The object of partition is severance of the joint possession, and accordingly the Act of 1882 primarily provides for an equal division of the estate among the parties entitled thereto, and then for the several contingencies that may arise in case that is impracticable. One of these is where the estate cannot be parted: that is, where it will not admit of any division whatever without prejudice to or spoiling the whole. Another is where the estate admits of division into as many purparts as there are parties, but not so as to make the shares of equal value ; and the third is, where it cannot be divided into as many shares as there are parties, but may be advantageously divided into two or more purparts. In each of these contingencies the 37th, 38th and 39th sections of the Act respectively provide for an appraisement by the inquest, and for allotment of purparts, adjustment of owelty, etc., by the court. But the 36th section, contemplating an actual and equal division among all the parties entitled, makes no provision for appraisement of the purparts, or of the whole estate, nor for the allotment of the purparts by the court. Doubtless the reason of this is, that where the joint possession can be severed, without prejudice, by giving to each party a portion of the estate corresponding in value with his .interest therein, the necessity for- an appraisement does not exist, and actual partition can be so far effected bjr the inquest or commissioners as to require nothing more than the final judgment or confirmation of the court under whose supervision the proceedings are conducted. As is said by Mr. Justice Kennedy, in Sampson’s Appeal, 4 W. & S., 86, the 36th section contemplates and provides for the partition and division of the estate, where it will admit of it without prejudice to or spoiling the whole, into as many purparts of shares of equal value as there are children or representatives of the intestate; and as there is no preference given by the terms of this section, either on account of age or sex, in making choice of the shares as they shall be set out and designated b.y the inquest, it would therefore seem as if the sheriff or the sheriff and the inquest were to assign to each one his or her share, as in the case of partition at common law, and that the court is merely “ to give judgment that the partition thereby made be firm and stable forever,” etc. Such, we think, has been the generally accepted construction of the Act; and, so far as we are aware, the practice in the Orphans’ Courts has been in accordance therewith. In a recent and well considered opinion, supported bjr the authorities therein cited, the learned president of the Orphans’ Court, fifth judicial district, recognizes the authority of commissioners in partition to allot in such cases, as being in accordance with Avell established practice : Giffen’s Estate, 30 Pg. Leg. Jour., 60.

The construction Ave have given to the Act of 1832 is not affected by subsequent legislation, so far as the question under consideration is concerned. The supplement of April 11, 1835, Purd. 1116, pl. 21, empowering the sheriff and inquest “ to divide the property into such number of purparts as shall appear to them most convenient and advantageous, without regard to "the number of parties in interest and to the value of each purpart,” does not modify the 36th section of the former Act. It is still the primary duty of the commissioners to divide the land into as many parts, of equal value, as. there are heirs; and, in this case, they found that such a division was entirely practicable. The Act of May 5, 1841, P. L., 353, is not applicable to partition in the Orphans’ Court. In express terms it relates to “cases of partition in the Common Pleas.” Nor does the Act of April 22, 1856, Purd., 1116, pl. 24, affect the question under consideration-. It provides “ that in all cases of partition of real estate, in any court, where a valuation shall have been made of the whole, or parts thereof, the same shall he allotted to such one or more of the parties in interest as shall, at the return'of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned,” &e. This pre-supposes an appraisement or valuation; but, as we have seen, when an equal division among all the parties is practicable, a valuation is neither necessary nor required by the Act. By its express terms, the section above quoted is applicable only to cases where an appraisement or valuation has been made and returned.

The amendment of the petition and writ was clearly in the power of the court, and under the circumstances disclosed by the testimony it was rightly allowed. No injustice was done the appellants thereby, and they have no just reason to complain.

Some of the specifications of error suggest questions that were not properly raised in the court below, and for that reason are not entitled to be considered here; but, waiving all that, we find nothing in any of them that would justify a reversal of the decree.

Decree affirmed and appeal dismissed at the costs of the appellants.