Neeld's Appeal , 70 Pa. 113 ( 1871 )

The opinion of the court was delivered, November 13th 1871, by

Sharswood, J.

The first six specifications of error relate to matters of fact in regard to which much must necessarily be intrusted to the sound discretion of the court below. Whether the executor or administrator of the estate of a decedent has neglected or refused to execute the order of sale in partition, so as to authorize the court, under the 44th section of the Act of February 24th 1834 (Pamph. L. 81), to appoint some suitable person as trustee for the purpose of making such sale, evidently falls within this category. It is to be presumed that he has refused, and his subsequent allegation to the contrary will not avail. Omnia prcesumuntur rite esse acta is a maxim which properly applies. This court ought not to reverse on such a ground, unless it manifestly appears on the face of the record that there was a palpable and gross abuse of the discretion of the court, which is not the case on this record. The same remarks apply to the exceptions which have been made to the manner in which the sale was conducted, and the price obtained for the property.

The only question which remains is that which arises on the seventh assignment of error, namely, as to the jurisdiction of the Orphans’ Court to entertain the petition of the widow praying for the award of an' inquest of partition to set apart to her one-third of the real estate of the decedent during her life, if that can be done without prejudice to or spoiling the whole; and if not, that the said real estate may be valued and appraised as the law directs. It is undoubtedly true, that before the passage of the Act of Assembly of April 20th 1869 (Pamph. L. 77), the Orphans’ Court did not possess that jurisdiction. In the case of a will, where the widow elected to take her dower at common law, her remedy was exclusively in the Court of Common Pleas: Bradfords v. Kents, 7 Wright 474; Shaffer v. Shaffer, 14 Id. 394. The Act of 1869, however, gave jurisdiction to the Orphans’ Court in such case “ on the application of the widow or any one interested ” to award an inquest to make partition, and to decree the allotments made, or, in case of refusal to accept, to order a sale, and secure the interest of the wTidow and all others interested in the same manner and with like force and effect as is now provided by law in the partition of the real estate of persons dying intestate.” The petition of the widow, filed September 28th 1867, and the inquest awarded thereon — upon which, however, no further proceedings were had, as the writ was returned “stayed” — were, therefore, coram non judiee, and, according to the established doctrine upon that subject, to be regarded as mere nullities. It is true that the 3d section of the Act of 1869 confers jurisdiction in such a proceeding pending before the passage of that act, upon the parties interested filing their written assent thereto. But where no such assent is filed it is clear that there is no jurisdiction. There was certainly nothing, then, as is indeed conceded, to prevent the widow from presenting a new petition on the 12th of February 1870, under the Act of 1869, nor can it affect the regularity of the proceedings, much less the jurisdiction of the court, that she endorses it as a “supplemental petition,” and recites in it the former petition, and the order of the court thereon. Names are nothing provided the substance be maintained. The former petition was a paper on file, which she might well incorporate by reference as a part of the new petition. It is enough that the order of the court awarding the inquest was made at a time when they possessed full jurisdiction over the subject-matter.

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