Appeal of Louisa Rankin

Mr. Justice Paxson

delivered the opinion of the court,

The first assignment alleges the Orphans’ Court erred in holding that it had jurisdiction in partition on petition of a life-tenant where there were lineal descendants. ' There is nothing in the language of any Act of Assembly that in express terms gives a life-tenant, other than the widow, the right to have partition in the Orphans’ Court. Without discussing this branch of the case, much less deciding it, we regard it as clear that the court had jurisdiction over the subject-matter. We need not refer in detail to the different Acts of Assembly upon this subject. It is sufficient to say, briefly, that they confer jurisdiction upon the Orphans’ Court to make partition in 1. Cases of intestacy. 2. Cases of testacy wherein minors are interested, or the provisions of the will do not alter the course of descent, and 3. Cases where title is derived from different ancestors by descent or devise. It is very clear that under the foregoing the Orphans’ Court would have had jurisdiction, had thq appellant, Mrs. Rankin, been the party petitioning. In such case the appellee, who is a life-tenant, would have been a necessary party to the proceedings. The court would then have had jurisdiction over both the parties and the subject-matter. The objection of the appellant has reference merely to the order in which the parties are brought into court. We infer from the record that this point was not raised in the court below until after the confirmation of the inquisition, and a rule issued to the heirs and parties interested to accept or refuse the premises at the valuation. She then filed her petition asking to have the proceedings set aside for want of jurisdiction. Her objection should have been made at an earlier day. It is true, as a general principle,' that objection to the jurisdiction may be made at any stage of the proceedings. But we do not think the rule applies where the court has jurisdiction over the subject-matter, and the objection, if valid, has reference only to the order in which the parties are brought into court.

The second assignment presents a moré serious question. It alleges “ the court erred in granting to the life-tenant of a moiety the right to compete with the lineal descendants for the right of choice, and in making an allotment of purpart ‘A,’ to the life-tenant against the protest of Mrs. Rankin, a lineal descendant, as well as one of the remaindermen.”

The allotment of purparts in the Orphans’ Court upon proceedings in partition is not an auction where any one can come in and bid. The 37th section of the Act of 29th of March 1832, Pamph. L. 201, designates the persons who may take at the valuation where the property cannot be divided, and the order in which they may elect, as follows : 1. To the eldest son, if he be living; but if he be dead, to his children, if any, in the order of their birth,, and preferring males to females ; and in like manner to his other lineal descendants in the same order. 2. If the eldest son, or his lineal descendants, do not accept the same, then to the second and other sons, or their lineal descendants, successively in the order of birth, in the like manner as is provided for the eldest son and his descendants. 3. If the second or other sons, or their descendants, do not accept the same as aforesaid, then to the eldest daughter and her lineal descendants, in like manner as is provided in the case of the eldest sons. 4. If the eldest daughter,- or her lineal descendants, do not accept the same, then to the second and other daughters, or their lineal descendants successively, in like manner as is provided for the second and other sons.

The foregoing applies to cases where there are lineal descendants. The 46th section of the same act refers to eases where there are no lineal descendants, and provides that, “ the like proceedings shall be had in all respects, on the application of the persons in whom the estate shall vest in possession : Provided, that if there he a life estate or life estates with remainders over, such remainder-men shall be made parties to the proceedings in partition, and shall have the right to accept or refuse the premises at any valuation, * * * in the same manner as the lineal descendants of a decedent.”

By this section, as will be seen, the life-tenant is not permitted to make choice as against even remainder-men.

I am unable to find in any of the subsequent Acts of Assembly extending the jurisdiction and enlarging the powers of the Orphans’ Court, a recognition of the right of a life-tenant to bid against a lineal descendant for a purpart in partition. The tenth section of the Act of 22d April 1856, Pamph. L. 534, confers no such right. While said section applies to all cases of partition, and provides that where there is a valuation “ the same shall be allotted to such one or more of the parties in interest who shall at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned,” yet it is apparent it does not change the law as to who may come in and bid. It was not intended to enlarge the circle of bidders. The .“parties in interest” referred to in the act are the persons who would have had the right to come in and elect to take prior to its passage. The section changes the mode of electing, perhaps its order, but not the persons.

It was decided in Painter v. Henderson, 7 Barr 48, that the widow, although entitled to have partition upon her application, was not a party to. whom a purpart could be awarded. The reason given was, that the Act of Assembly did not make her such a party, and the ¿mission to do so was intentional. The persons entitled to take are the heirs. Among the recognised exceptions are, 1. The husband may accept in right of his wife where she .is an heir: Johnson v. Matson, 1 Barr 171; Stoolfoos v. Jenkins, 8 S. & R. 175; Keen v. Ridgway, 16 Id. 60; Thompson v. Stitt, 6 P. F. Smith 156; and 2. The alienee of an heir: Sampson’s Appeal, 4 W. & S. 86; Thompson v. Simpson, 3 Barr 71; Painter v. Henderson, supra; Thompson v. Stitt, supra. The appellee here has a life estate in two different rights; in the one as tenant by the curtesy, and the other as heir of .his deceased child. It does not add to his estate, however, that he holds it in two rights. He is but a life-tenant.

Our Acts of Assembly in relation to partition in the Orphans’ Court, though passed at different times, in reality constitute one system, and must be construed together. They are ample for the protection of a life-tenant, but I am unable to see in any portion of this legislation even an intent that such tenant may come in and compete with heirs for the property. Nor is it necessary for the preservation of his rights. The object of partition is a severance of possession. The life-tenant is a necessary party to the proceedings. It is the duty of the inquest to set off to the widow her share by metes and bounds, if it can be done: Bishop’s Appeal, 7 W. & S. 251. By analogy the same rule may be extended to other tenants for life. It is true this leaves the remainder open to further partition at the death of the tenant for life, but this is an inconvenience that arises where the interests of the tenants are different in the time of their duration: Poundstone v. Everly, 7 Casey 11. If the property cannot be so parted and divided that the share of the tenant for life can be set off to him, the law requires that it shall be valued, and it may then be taken by the heirs in the manner before pointed out. The heirs taking the property are of course obliged io pay the tenant for life interest upon his share. This is specifically provided for in the Act of Assembly in the case of a widow. By analogy the interest of other life-tenants can be secured in the same manner. We are of opinion that our entire system of partition in the Orphans’ Court contemplates that where the share of a life-tenant cannot be set off to him by metes and bounds, he shall have the interest upon its value instead.

The life-tenant being a necessary party to the proceeding, is entitled to come in and except to the valuation fixed by the inquest. He is directly interested in such valuation; the more so that he cannot protect himself by competing with the heirs for the purparts. In all cases where there is a life-tenant great care should be taken to have a fair and correct valuation. This is not always done for the reason that the heirs can protect themselves by bidding. In the case in hand the appellee bid for purpart A. $5000 over the valuation. This is some evidence of an undervaluation. It may not amount to much in view of the fact that the bid came from the life-tenant, yet we think it entitled to some weight, and as the proceedings in the court below were based upon the mistaken supposition that the life-tenant had a right to bid, we will, in reversing the decree, open the confirmation of the inquisition. This will give the appellee the right to come in and except to the valuation if he thinks it too low, and in our judgment reach the substantial justice of the case.

The decree, with all proceedings subsequent to the return of the inquisition, is reversed and set aside at the cost of the appellee.