Case of Rhoads' Estate , 3 Rawle 420 ( 1832 )

The opinion of the Court was delivered by

Rogers, J.

The creditors of George Rhoads applied to the Orphan’s Court, of the county of Lehigh for contribution, on the ground that the property of George Rhoads had been taken to pay the debts of Peter Rhoads the elder, deceased, the properly having been sold under an order of the court, decreeing a sale for the payment of debts.

The application was made, under the act of 11th of April, 1811, the preamble of which sufficiently explains the reason of its enactment. In all cases after the final settlement of any administration account in the Orphan’s Court, if it shall appear there are not sufficient assets to pay and satisfy the balance appearing to be due and owing from the estate of the deceased, it shall be lawful for the said court, on the application of the executors or administrators, or any others interested therein, to make an order that so much of the real estate of which the deceased was seized or possessed at the time of his decease, shall be sold by the executors or administrators, as in the judgment of the court shall be sufficient to satisfy such balance.

The 4th of February, 1820, Peter Rhoads, acting executor of Peter Rhoads deceased, (George Rhoads having been previously dismissed) petitioned the Orphan’s Court for an order to sell, &c. The 4th of February, 1819, George Rhoads and Peter Rhoads, presented an ad-: ministration account, which on the 7th of May, 1819, was read and' confirmed nisi. There was due to the accountants the sum of one thousand nine hundred and eighty seven dollars, and sixty two cents, in addition to which there were debts outstanding, as was shown on the face of the account, which swelled the debts of the deceased to upwards of four thousand dollars! On this exhibit the executor prayed an order of sale, which was granted, and the property of George was sold and applied to the payment of debts, &c. This was then such a'final settlement of an administration account as comes within the meaning of the act; the amount of the personal .estate as appear-, ed to the court in an account presented, advertised and confirmed, to be insufficient to pay debts. The requisition of the act of 1811, being then complied with, the court was justified in its order of sale, for the purposes mentioned in the petition of the executor. The act does not require that the estate should be finally settled, but that an administration account should be passed and confirmed in due form of law; but is this such a case as authorizes the Orphan’s Court to decree contribution ? It has .been properly observed, that the act of 1st of April, 1811, does not create the right to contribution; but prescribes the remedy. The act is remedial, and should receive a favourable construction. There is a! peculiar propriety and fitness in the Orphan’s Court which ordered the sale, and which has power to bring all the parties in interest before them, decreeing the contribution. The creditors of George, whose property has been taken, apply to the court under whose direction' this has been done, to compel the parties in interest to contribute in proportion to the benefit they have received. It is particularly proper, here, that the court should give a remedy, as it was on the petition of Peter, the acting executor, that the sale was decreed, and an objection of the want of form, comes with a bad grace from him.’ The language of the act Is sufficiently broad to embrace the case. In all cases-where the court have power to order a sale, they have likewise the power to decree the contribution, which shall be made by the heirs and devisees respectively. Had the devise been made in severalty, it would scarcely be doubted that the creditors of George would be entitled to contribution, and what difference can it make, that the devise is to the sons as tenants in common; they are in either as devisees or heirs, with an undivided interest it is true, but this is afterwards converted into an interest in severalty. Had the lands been divided by writ of partition, George would have been entitled to .redress in the Orphan’s Court, for the heirs are not bound to wait until the debts are paid before they make partition. It may be done immediately on the death of the testator or intestate. It is said that no partition was made; and if this be so, then the creditors have no right to contribution. They would be entitled to the share of the land which remains after payment of debts. Whenever a question of the kind arises incidentally or directly, the Orphan’s Court must decide it, or may, if they deem proper, direct an issue, but this is no reason for denial of jurisdiction to the court. The property was valued and appraised in lots, numbered by men chosen by them without any designation of the devisees, to whom the respective portions were allotted. With the appraisement as the basis of the arrangement the devisees enter into the agreement of partition of the 15th of April, 1816. This it is said is an agreement for a partition, and not a partition of the property. The words of the agreement are “ that the said parties have made and by these presents do make a full and just partition of all the messuages, lands, tenements, and hereditaments, which they now hold as tenants in common by virtue of the last will and testament, &c.” in every agreement the intention of the parties is to govern, and there is no rule of law so stubborn that it will not recede from words to enforce the meaning of the parties. If the intention is clear that an estate shall pass, courts will construe deeds in support of that intention, different from the formal nature of those deeds. Plow. 290. 3 Burr. 1477. 1 Atk. 8. 4 Yeates, 298. 1 Yeates, 393.

When we couple the words of the deed, with acts' of the parties in talcing possession of their respective portions allotted in the agreement, improving and selling parts of the same, the intention cannot be mistaken. The deed contains a covenant for the execution of a deed of partition, and such other legal assurances as might be deemed necessary on or before a certain specified time! No other assurance would seem to have been deemed necessary, and it will not now do to permit the partition to be avoided for that reason, when the circumstances of the parties and the value of the property have so materially changed. It is further objected that Catherine Blumer should have acknowledged the instrument in due form of law. To this I answer, that the act of 24th of February, 1770, does not apply to a partition, but establishes a mode by which husband and wife may convey the estate of the wife. In partition under an order of the Orphan’s Court the wife is not made a party. The order is made on a petition by the husband, in right of his wife. I can perceive no good reason why such a partition as this should not be valid, particularly when it appears to be for the advantage of the wife, and for the benefit of her heirs, who now seek its enforcement against the executor, on whose petition the land had been sold. And this is in accordance with the principle of the court, in Burke v. Lessee of Young, 2 Serg. & Rawle, 386. There is no person here making any objection who has a right to object.

Judgment of the Circuit Court reversed.