Kunselman v. Stine

Opinion by

Mb. Justice Fell,

The plaintiff sued to recover the arrears of annual interest due upon her share of the real estate of which her husband died seized. Her right to recover was settled by the decision in Kunselman v. Stine, 183 Pa. 1, in which it was held that her interest in the real estate of her husband was that of a tenant for life, and that it was not changed by the fact that in partition proceedings it was charged upon all the land of the husband passing to a purchaser. Her action was brought in Northumberland county, and the land is situate in Schuylkill county. Upon the return of the record from this court to the common pleas of Northumberland county a testatum fi. fa. was issued directed to the sheriff of Schuylkill county. The defendant then obtained two rules, one to show cause why the levy should not be restricted to the land, and the other to strike off the judgment on the ground that the action was local and that the court in which it was brought was without jurisdiction. The discharge of these rules gave rise to the questions now presented.

When the sale to the defendant was confirmed by the orphans’ court it was ordered that one third of the purchase money, being the share of the widow, should remain during her life in the hands of the purchaser, and that interest thereon should be paid to her by him, his heirs and assigns, holding said premises, to be recovered by distress or otherwise as rents are recoverable. This order was made in pursuance of section 43 of the act of March 29, 1832, which provides that where a decree for the sale of real estate under proceedings in partition shall he made by the orphans’ court, “ the court shall direct that the share of the widow, if there be one, of the purchase money, shall remain in the hands of the purchaser during the natural .life of the widow, and the interest thereof shall be regularly paid to her by the purchaser, his heirs and assigns holding the premises, to be recovered by distress or otherwise as rents are recoverable in this commonwealth, which the widow shall accept in full satisfaction of her dower in such premises, and at her decease her share of the purchase money shall be paid to the persons legally entitled thereto.”

Difficulty has been experienced in all attempts to define the precise nature of the interest which a widow takes in this state in lieu of her dower at common law. The cases however agree that it is an interest in land, and not a mere charge or lien; and that the character of her interest is not changed by the act of 1832, which, prescribes the form of ascertaining and assigning it, and changes somewhat the method of its nse and enjoyment: Schall’s Appeal, 40 Pa. 170; Gourley v. Kinley, 66 Pa. 270; Diefenderfer v. Eshleman, 113 Pa. 305; Kunselman v. Stine, 183 Pa. 1. But the only question now before us is whether a purchaser at the sale under proceedings in partition, who still holds the title to the land, is personally liable for the payment of the annual interest. That the acceptance by an heir of a portion of a decedent’s estate charged with the payment of the interest of one third of its valuation to the widow for life creates a personal liability on the part of the heir for the payment of the interest was expressly decided by this court in Penna. Co. v. Vansyckel, 2 Pittsburg, 535 ; 5 Leg. & Ins. Rep. 107. In the opinion in that case it was said by Strong, J.: “ The heir then takes the land descending to him and adjudged to him in severalty on the conditions prescribed in the act, which are, that he shall annually pay to the widow the interest on one-third of the valuation, and that it may be recovered of him as rents are recoverable. That tins creates a personal liability to pay, even without a bond or recognizance securing the widow’s interest, is manifest. In substance, the heir is a purchaser from the widow, and her interest is the price. Her dower is exchanged for her interest under the intestate laws, and the heir obtains the land unincumbered by her dower, in consideration for his assuming to pay her the annual interest.”

This reasoning applies with equal, if not with greater, force to a purchaser at the sale. Section 41 of the act which provides for the • interest of the widow where the land is taken by the heirs, requires that the sum at which her share of the estate shall be valued, together with interest thereon, shall be and remain upon the premises. Section 43 provides that where the land is sold the widow’s share of the purchase money shall remain in the hands of the purchaser during her life. The language of this section, more directly than that of section 41, imposes a personal liability.

The action, being founded on privity of contract, was transitory, and the court in which it was brought had jurisdiction.

The judgment is affirmed.

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