Appeal of Rawle , 119 Pa. 100 ( 1888 )

Opinion,

Mr. Justice Paxson :

We find no error in this record. Mrs. Struthers, the petitioner, was the alienee of the shares of three of the minors, and as such was entitled to have partition: Ragan’s Estate, 7 W. 438; Sampson’s Appeal, 4 W. & S. 86; Thompson v. Stitt, 56 Pa. 156; Stewart’s Appeal, Idem 241. Aside from this, there are two minors interested in the estate. We are in no doubt as to the jurisdiction of the court.

Nor do we think the executors of the will of Dr. Edward Peace have any such title to or interest in the property in question as gives them any right to prevent this partition. The will gives them no title whatever. Their power is confined to dividing it into five parts. And after such division they have no power to convey it. A title to the different divisions could only be given by proceedings in the Orphans’ Court. This has been done as to all the real estate except this one property, which it is found cannot be divided.

We see no grounds, therefore, for our interfering with these proceedings for matters so purely technical. We are of opinion, however, that the decree below should be amended by substituting the administrator d. b. n. c. t. a. of Anna C. Peace as the person to execute the order of sale in the place of the executor of Edward Peace. The will of the latter, so far as this real estate is concerned, is but the execution of the power contained in the will of Anna' C. Peace, and her administrator would seem, under the act of assembly, the proper person to make the sale.

It will be the duty of the court below to make this modification of its decree, and with this modification

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

On March 5, 1888, on motion of the appellants’ attorneys, the decree entered in the foregoing cause was modified so far as to make the costs of the appeal payable by the appellees instead of by the appellants.