In re Gardiner's Estate , 1846 Pa. LEXIS 272 ( 1846 )

Gibson, C. J.

The clauses in the fourth section of the act of 1840, are evidently disjunctive provisions for distinct cases. The section empowers the Orphans’ Court to make partition in all cases of testacy “ where the parties interested, or any of them, are minors ; or the course of descent is not altered” by the will. Why send parties, merely because there is not a minor among them, into the Common Pleas for partition of land not even attempted to be-devised to them, or, if attempted, devised to them exactly as it is given to them by the law, which casts the inheritance upon them in exclusion of the will, compelling them to take by their preferable title ? There is no reason for not allowing the parties to choose their forum, as well where all are of age, as where some of them are infants; and it is expressly provided, that in all cases within the act, any of the parties may proceed by action of partition as heretofore. If, however, infancy were to be an ingredient in all cases of this special jurisdiction, adult parties who had taken by the statute and not by the will, would be confined to the Orphans’ Court alone. But jurisdiction had previously been given to the Orphans’ Court in cases of intestacy generally; and a doubt, for which there was no solid foundation, had prevailed, but which it was the purpose of the second clause to remove, whether parties could proceed in the Orphans’ Court for the partition of descended land in a case of partial intestacy. The clause was unnecessary; but the office it was designed to perform was very different from the office to be performed by the clause coupled with it. Whether the land had descended or passed by the will, the object was to give the Orphans’ Court concurrent jurisdiction whenever one of the parties should be a minor; and to commit the protection of his interest to its peculiar care. If that was not the object, both clauses amount to absolutely nothing ; for there has not been a time since 1794, when the Orphans’ Court might not hold jurisdiction in partition of descended land, whether any of the parties were minors or not. If it was not intended to empower that court to make partition, in the case of a minor, according to the devises in a will, the legislature meant nothing.

But the proceedings are to be the same as they are in cases of intestacy; and the land is consequently to be divided between the first takers, and, when any of them are dead, without subdivision, between their representatives ; for such has b'een the course in cases of intestacy, in which the children of a child take their parent’s share as tenants in common. Without this limitation, the statute could seldom be executed ; for it would be impossible to provide for the security of contingent interests. In this instance, had the wffiarf itself been capable of partition, the interests vested under the will might have been parted by assigning to Mary Gardiner, now Mrs. Dilworth, her estate for life in her property, and leaving the contingent remainders dependent on it to vest at her death in such as should be,,in esse according to the limitations in the will. Being incapable of division, however, it was sold; and the price of it is in the hands of the trustee, as the equivalent of the realty. What, then, is there in the case, to prevent the court from disposing of it, as the realty would have been disposed of had it been divided in kind ? Mrs. Dilworth is entitled to the interest of it during her life; and the principal is to be paid to her children at her death. What remains then is to have it, in the mean time, invested by the trustee under the direction of the Orphans’ Court, which possesses, within its sphere, the incidental powers of a Court of Chancery. It may order it to be invested in real securities at legal interest, or in certificates of stock, or in any other way it may judge to be best; and it will be its business to give the whole matter its particular supervision, compelling the trustee to follow its directions. At present, there is no more to do, than to say, that the exceptions to the confirmation of the sale are not sustained. Decree affirmed.

From the 15th of February to the 2d of March, Coulter, J., was absent at Nisi Prius.