Luckenbach v. Luckenbach , 38 W.N.C. 326 ( 1896 )

Opinion by

Mr. Justice Mitchell,

The learned judge below gave a broader effect to our decision when this case was here before (Luckenbach’s Estate, 170 Pa. 586) than it was intended to have. All that was then decided was that the present appellant not being a legatee but only a creditor of a legatee under the will of George Luckenbach, the orphans’ court had no jurisdiction to order a sale of the land under the act of February 24, 1834, P. L. 73, and the residuary legatees to whom the land would come after the widow’s death, had a right to be heard on the crucial fact of a direction by the widow to her husband’s executor to sell the land for her maintenance.

This fact, which is the foundation of appellant’s asserted rights against the land, has never been ascertained. What is said in the opinion in 170 Pa. 586, that “the widow requested the executor to make sale, and then revoked the request,” was said with reference to the status of the case as it was then before the court. The residuary legatees alleged a revocation by the widow of the direction to sell, and as they had not had a hearing on that question the case had to be treated as if their allegation was true.

The debts of the widow not being charged on the land by the testator, the appellant as was heretofore decided has no claim against the land as a substituted legatee, or as the creditor of a legatee. But he avers a right arising from the direction of the widow that the property should be sold to pay him for her maintenance. This is the foundation of the whole case and appellant is entitled to a hearing and determination of the essential fact. By the terms of George Luckenbach’s will his widow was to have the income of his real estate, and “if it should prove at any time during her life that she should find it necessary or more convenient to make sale thereof for her maintenance and well keeping ” the executor was directed to sell, and the income of the proceeds or the capital if necessary was to be employed for her benefit, maintenance and comfort. This gave her the option to determine the style of her living, and the necessity of sale. No one else could decide that for her, and no one had any standing to dispute her decision in regard to it. Her exercise of the option was complete by a direction to the executor to sell. It was of course revocable by her but it was not revoked merely by lier death. It was not the sale that was to be during her life, but that “ she should find it necessary or more convenient to make sale.” Her part was done when she directed the sale, and the carrying out of the order by the executor in her lifetime was immaterial. No delay on his part could change her rights or those of others which depended on them. This was decided in Reek’s Appeal, 78 Pa. 432, which went farther on this point than we are required to do here, for it was held under the provisions of the will in that case that the necessity for the use of the principal might be determined by the court after the widow’s death although she had made no demand for it. Miller & Bowman’s Appeal, 60 Pa. 404, and Mellon v. Reed, 123 Pa. 1, 15, cited hy appellee, decided only that the wills in question made no conversion, but only gave a contingent authority to convert. That is all there is here, with the additional fact that the contingency, to wit the direction of the widow to sell, is averred to have happened.

The petition does not ask for relief in the specific form in which alone it can he granted. But whatever might be tbe effect of this objection in ordinary cases we think the appellant is entitled to indulgence by reason of the special circumstances. His first petition prayed a decree directing the executor to make sale of the house and lot described in the will of George Luckenbach “ and said order of Maria Luckenbach,” and thereupon to pay, etc. This was the proper form for the relief asked, and the court upon it decreed a sale, but based the decree on the ground that the petitioner had succeeded to the rights of the widow and the case was therefore within the act of 1834. For this reason, and because the residuary legatees had not been heard on the question of the revocation of the widow’s order to sell, the decree was reversed. It was not unnatural for the petitioner to infer from this that the prayer of his petition was disapproved, but such was not the intention. The reversal was a decision against the decree, not against the relief asked. The present petition sets forth the necessary facts, and only the formal prayer is wanting. The petitioner therefore should have leave to amend his prayer for relief, and that being done, the court should proceed to determine the fact whether the widow exercised her power under the will to direct a sale, and did not revoke it. If this should be determined in appellant’s favor the executor should then make the sale, and bring the proceeds into court to meet the appellant’s claim, with the same effect as if done in the widow’s lifetime. The land notwithstanding the decree in partition must be subject to prior debts and charges as in other cases.

Decree reversed at the costs of the appellee and record remitted for further proceedings in accordance with tins opinion.