Hay's Appeal

The opinion of the court was delivered, June 1st 1866, by

Strong, J.

The fund for distribution consists entirely of the proceeds of sale of the real estate which descended to Mrs. Elizabeth Hay, from her deceased father. Under proceedings in Orphans’ Court partition the lands had been sold, and Mrs. Hay’s share of the price had been received by her husband. The 48th section of the Act of Assembly of March 29th 1832 declares that, “ when upon any proceedings in the Orphans’ Court, a sum of money shall be awarded by the court for the share or portion to which a married woman may be entitled, such money shall not be paid to her husband, until he shall have given security to the satisfaction of the court that the amount thereof, or so much thereof as the court shall deem proper, be paid after his death to his wife, or if she shall not survive him, to her heirs, as if the same were real estate; or if the husband shall be unable, or refuse to give security as aforesaid, the same may be vested in trustees to be approved by the court, for the same purposes, but reserving to the husband the interest thereof during his life, unless the husband shall desire the same to be settled for the separate use of the wife.” The eifect of this provision is not to prevent a conversion of a wife’s real estate into personalty by an Orphans’ Court sale, but to restrict the husband’s interest in the proceeds of such sales, and to determine to whom the purchase-money shall belong, subject to the husband’s life interest. They are to be distributed to the same persons, and in the same proportions as the land would have been had it remained unsold, and the wife had died seised thereof. If the wife die before her husband, as was the fact in the present case, the money is to be distributed to her heirs, as if the same were real estate. This is not a regulation of the time of permitted enjoyment, but a designation of distributees. During the life of the wife, the ownership is vested in her, subject to her husband’s title to the usufruct. At her death the ownership descends to her heirs, who would have inherited the land itself had it remained unsold. But who are her heirs ? They are those upon whom the law casts the inheritance at the death of the ancestor. In the present case they were the three children of Mrs. Elizabeth Hay. To them the land would have descended had there been no Orphans’ Court sale, and in them the right to the price of the land therefore vested, on the death of their mother. The court below fell into error in holding that it went exclusively to those who happened to be heirs living at the termination of the husband’s life interest. The act does not direct that the money shall be paid to the heirs of the wife surviving her husband, — such a direction would be inconsistent with its descent Sg real estate through the wife, or with a payment to the heirs of theVife as if it were realty. We think, therefore, that on the death of Mrs. Hay the right to the money became vested in Martha, Elizabeth and Hanson Hay, her three children, though th« time of enjoyment was postponed until the death of their father. Two of these having died in the lifetime of their father, in their minority and without issue, their shares''descended to their father. For it descended as personalty, which it actually was. The provision in the Act of Assembly extended no farther than to regulate the first descent, and prevent the fund from passing directly from the wife to the husband. After it had vested in the heirs, it was no longer real estate for any purpose, and on their subsequent death it went to their personal representatives, and through them to their father. Such is the rule asserted in Pennell’s Appeal, 8 Harris 515, and in Dyer v. Cornell, 4 Barr 359. It follows that the court erred in reversing the schedule of distribution reported by the auditor.

The decree of the Orphans’ Court is reversed so far as it directs a change in the report of the auditor, and the report of the auditor is confirmed. It is also ordered and decreed that the costs of this appeal be paid by the appellees.