Detweiler's Appeal

Tbe opinion of tbe court was delivered, by Strong, J. The petitioner in the court below was the widow of Isaac Stout. Under the Act of April 14th 1851, she had claimed to retain of the estate of her deceased husband property to the value of $300, and on the 22d of April 1859, appraisers appointed by the administrator had set apart to her, personal property valued at $181.20-J. The remainder of the $300 sho elected to take in real estate. ’ The appraisers, having been unable to divide the lands of the decedent so .as to set apart to her so much thereof as amounted in value to $118.79, without injury to or spoiling the whole, reported against a division, and their report and appraisement was confirmed by the Orphans’ Court. Subsequently, under proceedings in partition in that court, the real estate was adjudged to Jacob Stout and Samuel B. Stout, two of the heirs, who then sold to the appellants. The remainder of the widow’s $300 not having been paid, she presented her petition to the Orphans’ Court, praying for a decree that it be paid by the terre-tenants of the land, and a decree cle terris was accordingly made. From this decree the present appeal has been taken. It admits of no question that the Act of 1851 gives to a widow a right to property of her deceased husband amounting in value to $300, absolutely and in preference to creditors and heirs. True, it is a right sub modo, to be asserted in the manner pointed out by the act, but it is on that account not the less perfect. If personal property be appraised and set apart to her, and if the appraisement be approved by the Orphans’ Court, her ownership of it is complete. So if land be appraised for her, with the approval of the court, it becomes hers. That which was an undefined claim against the whole estate, satisfaction of which the widow may insist upon in the statutory mode, has been defined and limited to the specific land or articles of personalty. It is the remainder of the estate only that belongs to the creditors or heirs of the decedent. If, as in the case before us, where everything that the statute requires to assert the widow’s right has been done, neither personal property nor land has been set off to her, to the extent of her right, creditors and heirs must stand aside until she has been satisfied. When the Orphans’ Court confirmed the report of the appraisers, certifying that the land of the decedent could not be divided so as to assign to the widow such a part as was equal to $118.79, they, in effect, decreed that such sum remained a charge upon the whole real estate. It was a charge created by the Act of Assembly, and declared by the court. As it wTas a sum of money to be paid out of the lands, in the strictest sense a charge, it must follow the lands into whosesoever hands they may come, for a purchaser from the heir has notice of every statutory charge. [246] The only question then remaining is whether tho Orphans’ Court has power to enforce payment of the sum charged, by a decree that it be made out of the lands by sale. In the settlement and distribution of the estates of intestates, that court has full equity jurisdiction. Those who claim any portion of such estates may, and in most cases must, go into that court. The power of confirming the report of appraisers, which declares that the widow is entitled to statutory allotment out of the land, is expressly given to it. It has jurisdiction, then, over this right of the widow, and in the case now before us, it had jurisdiction in the partition. With undoubted jurisdiction over the subject-matter, as well as the parties, why then may it not proceed in the usual course of equity practice to complete what it has rightfully begun ? It is certainly an anomaly if the court has power to make a decree, the effect of which is to fasten the charge exclusively upon the lands of the decedent, and yet is unable to enforce its decree. We have no doubt that it has such power, and that it was properly exercised in this case. True, it is a court 'of limited jurisdiction, but within the sphere of its jurisdiction, its powers are as ample as those of any court of equity. There is nothing in Lyman’s Administrator v. Byam and Wife, 2 Wright 475, which denies the power of the Orphans’ Court to decree the sale of real estate to satisfy the widow’s claim, where the lands have become exclusively chargeable with it in the mode prescribed by the Act of 1851. The principle of that case is, that a widow who disregards the legal course of procedure, abstracts the personal property without accounting for it, demands no appraisement, and makes no election, is not entitled to the benefit of the act, and cannot recover damages from the administrator for not having an appraisement made, without accounting for the property abstracted by her. It was in relation to such a case that it was remarked, “ The Orphans’ Court may order a sale (by the administrator) of a decedent’s real estate to pay debts and to maintain and educate children, but not for the purpose of giving the widow her statutory allowance.” It was said of sales, in course of administration, by the personal representative. And it was well said; for tho widow does not take through the administrator, but before him. It is what remains after her $300 are taken that he is to administer; or if she takes out of the real estate, it is only what is left after she has been satisfied, that is assets for the payment of debts or distributable among the heirs. The decree of the Orphans’ Court is affirmed, with costs.