Vowinckel v. Patterson

OPINION by

Me. Justice Teuneey:

When this cause was heard and decided no reference was made to the act of April 25, 1850, P. L. 570. After the decision was announced, a jurist of much experience in all that pertains to the business in the orphans’ court, whose suggestion is entitled to consideration, called our attention to that statute; and the question of jurisdiction being so important, a reargument was ordered. The learned counsel have greatly aided us by their able arguments upon the question.

The fourth section of the act of 1850 declares the true intent .and meaning of the third section of the act of 1840, “to be that the title of persons to real property of decedents in this commonwealth, heretofore acquired under proceedings in partition in the orphans’ courts, if such proceedings were in other respects regular, shall not be impaired, or in any wise defeated •or made void, by or upon any other proceeding in any court of this commonwealth, by reason of such property, or any part thereof, having been devised by any such decedent to children or heirs generally, or to any one or more of them, or to other persons, if such devise to one or more had become lapsed, or had become forfeited by nonperformance of any condition, or the devisee or devisees for any reason bad refused to accept the same.”

The fifth section declares that said § 3 of the act of 1840, according to the meaning thereof as declared by § 1 of this act, shall extend to all cases which have heretofore arisen or which may hereafter arise within this commonwealth.

Without considering whether the court may amend said § 5 by striking out the word “first” and inserting instead the word “fourth,” it is clear that the meaning of the third section of the act of 1840 is defined in the act of 1850. Prior to the statutory definition of said § 3 of the act of 1840, its meaning was plain; now it is unlikely that it can be satisfactorily ascertained. Its application is limited to cases where the devise is to children or heirs generally, or to any one or more of them, or to other persons, if the devise has become lapsed, or forfeited for nonperformance of a condition, or the devisee has refused to accept.

The expression “if such devise to one or more had become Lapsed” or forfeited, or unaccepted, cannot be applied exclusively to a devise “to other persons;” nor do we now say it applies to such devise; by repeating the words “one or more” it relates to the devise “to children or heirs generally, or to any one or more of them.” Nothing in the facts of this case brings it within the statute.

Perhaps it would have been useful legislation had the jurisdiction of the orphans’ court been extended so as to include partition in all cases of testators’ estates.

The judgment already entered must stand. Pecord remitted.