Miller v. Leidig , 3 Watts & Serg. 456 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

As it is not in the power of the husband to dispose of his wife’s real estate, except with her consent, testified by her acknowledgment of a deed of conveyance separate and apart from her husband, according to the Acts of Assembly, if the wife’s interest, in the present case, is to be considered as real estate, it . survived to her. That it is real estate is clear, from considering, ( that the intestate Act'gives her, where there are children, one- \ third of her deceased husband’s lands during her life. In case, \ however, it becomes necessary to sell the lands, in order to make division, then her share, with the interest, is to be and remain chai’ged on the premises, and the amount thereof to be annually and regularly paid by the child, his or her heirs and assigns, holding the lands, to be recovered by the widow by distress or otherwise, as rents in this commonwealth are usually recovered, during ( her natural life: Act of 19th April 1794, sec. 3,22. It is, then, ' a rent charged on the premises, recoverable by distress or otherwise ; and such rent is an incorporeal hereditament—real estate —and is not within the power of the husband, like a chose in action, to reduce into posession or dispose of. It is true a distress for such rent is not the only remedy which the widow possesses. V She may bring debt for the rent or annuity. It is the practice generally, though the Act does not prescribe it, to secure it to her ■ by recognizance; and on this also she has a remedy by action. But these are only collateral or concurrent remedies, designed to fortify the widow’s right, and to enlarge her means of recovery, and not to transfer any greater power to her husband.- Primarily and essentially, her estate is a rent issuing out of the land, and, therefore, an incorporeal hereditament ranking as real estate. During the lifetime of Peter Leidig, by the events which occurred, the rent was not merged, but only suspended, and on his death the widow’s right revived.

Judgment affirmed.