Estate of Danhouse , 130 Pa. 256 ( 1889 )

Opinion,

Mb. Cheer' Justice Pans on :

This was a case of partition in the Orphans’ Court. The petition sets forth that “ Frederick Danhouse.....died on April 8, 1880, leaving to survive him Susan, his widow, and one child, to-wit, John M. Danhouse.” This is a meagre statement of the ownership of land of which partition is to be made. The names of all the parties should not only be given, but there should be a positive averment that they are the only parties. All that the petition states may be true, yet, for anything upon its face, Frederick Danhouse may have left surviving him other children besides John M. Danhouse. Too much care cannot be taken in proceedings affecting the title to real estate. Fortunately there was an auditor appointed in this case, and he has found all the facts omitted from the petition.

It is true that the widow cannot take the estate at the valuation : Painter v. Henderson, 7 Pa. 48; Gourley v. Kinley, 66 Pa. 270. Under these authorities, Susan Danhouse could not take the estate as widow. Nor did she take it in that capacity. She was heir at law of her deceased son, John M. Danhouse. As it distinctly appears upon the record that the latter left no issue, and died intestate, his mother took the estate in fee, subject to the dower rights of his widow. Susan Danhouse, therefore, was entitled to an interest in the land as the widow of Frederick Danhouse, and also to the fee in said land as the heir of her son. As widow, her rights were paramount to those of her son’s widow; as heir of her son, her rights were subject to those of his widow. It was urged, however, that upon her son’s death her dower rights merged in the fee which was cast upon her by that event. I do not see much force in this position. As a general rule, merger is a question of intent, and will not take place against the wishes of the party to be affected by it; and, where it is against the interest of the person holding the respective titles, the law will not presume an intent to merge. Here, Susan Danhouse had done nothing from which such intent could be inferred; and, as it was plainly against her interest, no presumption of such merger can arise.

It is clear that Susan Danhouse, as the widow of Frederick Danhouse, was entitled to the interest'of one third of the valuation money. John M. Danhouse, as before stated, left no children ; hence his widow would be entitled to the interest on one half of the two thirds left after providing for Susan. But, in case of the death of the latter before her, she would become entitled to the interest on one half of the whole. This is precisely what was awarded her by the court below.

The specifications of error are numerous, and need not be discussed in detail. What we have said disposes of all that is important in the case.

The decree is affirmed, and the appeal dismissed, at the costs of the appellant.