Luther v. Wagner , 1884 Pa. LEXIS 298 ( 1884 )

Mr. Justice Trunkey

delivered the opinion of the court November 10th, 1884.

Where an intestate leaves a widow and issue, the widow shall be entitled to one third part of the real estate for the term of her life: Act of April 8th, 1833, P. L. 316. The statute relating to partition provides that the widow’s purpart or share of the real estate shall be valued, and the same together with interest thereof shall be and remain charged upon the premises, and the legal interest thereof shall be annually paid by the person holding such real estate, to said widow during her life, and she may recover the same by distress or otherwise, as rents are recoverable. This is the same, substantially, as was provided by prior statutes, and the decisions prior to the Act of March 29th, 1832, are still authority.

It has been observed that the widow’s right to annual payments in lieu of do.wer “partakes of the various features of an annuity, of interest on money, and of a rent charge, without being susceptible of a distinct classification with either:” Stewart v. Martin, 2 Watts 200. Where the estate is accepted at the appraisement or sold, she has a life estate of one third of the rents and profits of the whole estate, measured by the interest on her share of its value as ascertained bjr the appraisement or sale. And though the assignment of her share may thus be made, she has an estate in the land, and it vests in her eo instanti the husband dies : Gourley v. Kinley, 66 Pa. St. 270. After the appraisement her estate, like a rent charge, may be sold at sheriff’s sale: Thomas v. Simpson, 3 Id. 60. A sheriff’s sale of the land as the property of the person who took it at the appraised value, or who holds under such person, will not divest her estate, or the right of the heirs to the principal at her death : Mentzer v. Menor, 8 Watts 296. But such sale divests the annual payments accrued and in arrear: Dickinson v. Beyer, Adm’r, 87 Pa. St. 274; Davison’s Appeal, 95 Id. 894.

The law provides that the interest shall be paid to the widow annually. The estate being for life the interest stops at her death. “ For what becomes payable in her lifetime she may distrain, and so may her personal representative after her death, for she is substantially a tenant for life of a rent; ” but her personal representative cannot distrain for the interest which had accrued and was not in arrear at her decease : Henderson, Executor, v. Boyer, 44 Pa. St. 220.

In view of the nature of the widow’s estate, her annual interest cannot be deemed merely as interest on money. Unlike the lien of a judgment, or most other liens, her estate is unaffected by a judicial sale of the land. A lien, like a judgment, which will be discharged by a sheriff’s sale of the land, whether due or not, if the proceeds be sufficient, will be paid with accruing interest till date of the sale, and the purchaser takes the land freed from such lien. But the widow’s estate is not a lien, and the rent or interest in the nature of rent, which had not become due before the sale, remains as part of her estate. It has been often ruled that by such sale the lien of arrears due the widow is divested; but there is not even a dictum that the accruing interest not due at the time of sale does not continue a lien. Until due the interest is not in arrear. The widow has no right to demand it till due. She is not bound to take it piecemeal from different persons, part before due and part after.

Judgment affirmed.