Yohe v. Barnet ( 1808 )

Tilghman C. J.

This case comes before the court on an appeal from the Circuit Court of Northampton county, who reversed the judgment of the Orphan’s Court of the same county.

Jacob Yoke married one of the daughters of Henry Barnet deceased; and his wife is living. He became indebted to the said Henry Barnet by bond, which was put in suit, and judgment obtained on it by the said Henry in his life. Part of this judgment has been paid; but a considerable balance remains due, and Jacob Yoke is insolvent. After the death of the said Henry Barnet, his land not being capable of a division among all his children without injury, was by order of the Orphan’s Court, assigned to particular children, who were to pay to the other heirs the amount of their share of the valuation of the land in money. The share of the wife of Jacob Yoke was one fifdi part of the valuation, which was to be secured by a bond to be given to the said Jacob Yoke in right of his wife. The other heirs of Henry Barnet petitioned the Orphan’s Court for an order to deduct the balance due on the judgment against Jacob Yohe, from his wife’s share of the real estate which was to be secured by bond as aforesaid. The Orphan’s Court adjudged that the prayer of the petition could not be granted; , and the Circuit Court decided on an appeal that the petition should be granted. Many exceptions were taken to the judgment of the Circuit Court, but on the argument they were reduced to two.

1. That the Orphan’s Court had no jurisdiction to act on the matter of the petition.

2. That it was unjust to deduct the husband’s debt from the wife’s share of her father’s real estate.

1. In supporting the first point it was urged, that the Orphan’s Court had no authority but what they derived from the act of Assembly directing'them to make partition of the intestate’s estate; and that in case of a dispute they have no mode of ascertaining the amount of a debt. But there are cases in which the Orphan’s Court must take upon themselves to decide facts incidental to the partition of an estate. For instance, if a dispute should arise concerning the amount of an advancement made by the intestate in his life to one of his children, partition cannot be completed till this ahaount be ascertained. If necessary, facts may be ascertained by a jury; so that there seems to be no difficulty in surmounting this part of the objection. If instead of a debt due from To he to his father-in-law, he had received from his father-in-law air advance of money in part of his wife’s share of the estate, there is no doubt but the Orphan’s Court could and must have deducted the amount of the advance. The case of a debt, to be sure, is not quite the same; although in fact this debt has drawn as much from the estate of Henry Barnet into the hands of his son-in-law, as if it had been an actual advance. But inasmuch as Yohe cannot come at his wife’s share without the aid of the Orphan’s Court, I see no reason why that court may not deduct what appears to be due from him to the other heirs, in a case like the present, where if he once gets hold of the money or the bond, there is reason to fear that payment of his debt will never be obtained. I speak now, taking it for granted that Yohe is entitled to receive the amount of his wife’s share, which is the second point for consideration.

2. The Orphan’s Court have ordered that a bond should be given to Yohe in right of his wife for the amount of her share. It is said, and not without great plausibility, on the part of the appellant, that this bond being given in lieu of land, ought to be considered as the property of the wife; that if the bond was passed immediately to her, and she should survive her husband, it would be her absolute property, and that it is hard to deprive her of this chance. There certainly may be hardships in cases of the kind, which probably the legislature were not aware of, when they directed the mode of partition. But we must take the law as we find it written. There is no ground for saying that the share, thus directed to be paid in money, remains for any intent or purpose, of the nature of real estate. It is convert- ’ ed completely into personal property. The bond would be altogether in the power of the husband. He might release it, assign it, or dispose of it in any way he thought proper. It is to be regretted that the courts in this state are not vested with tho power exercised by the Court of Chancery in England, of insisting on some provision for the wife, when the husband applies to them for the purpose of getting possession of her personal property. But we have no trace of any such exercise of power by our courts. It must be taken for granted then, that they possess no such power. That being the case, Jacob Tohe appears to be substantially the owner of his wife’s share. If it was payable in cash he would have a right to demand it; and being in fact no more than money to be secured by bond payable in a time to be fixed by the Orphan’s Court not ex. ceeding twelve months from the partition, I am constrained to consider it as his property.

I am therefore of opinion that the equity of this case demands that the balance due on the judgment against Jacob Tohe should be deducted from his wife’s share, and that the judgment of the Circuit Court be affirmed.

Braciceneidge J. concurred.

Ye ates J. and Smith J,

gave no opinion, as the appeal was from their decision.

Judgment affirmed.