Cowan's Appeal

The opinion of the court was delivered, November 10th 1873, by Agnew, J. — In view of the general intention of the testator, William Jack, as drawn from his entire will, the least that can be said of the devise to Matthew Jack of the “ Best ” farm, is that it is obscure. In this state of the case the real estate of the testator was brought into partition in the Orphans’ Court, on the petition of William. Jack, the eldest son; the widow and devisees being made parties, and bringing in also Nancy Jack, a daughter, born after the making of the will and before the testator’s death, but not provided for in the will. Three of the devisees and Nancy were minors, Matthew Jack, the accountant, being their guardian. Partition being made, the “ Best ” farm and the “Bushfield ” tract were awarded to Matthew Jack in part, and he, on behalf of his wards, took other lands, which they held together. This was in 1862. There is no complaint that this partition was unequal or unfair. To December Term 1865, an action of partition was brought in the Court of Common Pleas by Elizabeth Latta, one of the three minor devisees (then of age), along with her husband, against the other two and Nancy, in which a valuation was made of the lands Matthew Jack, their guardian, had accepted for them in the former partition. One purpart was taken by Wm. Latta, thirteen parcels were sold, and one remained unsold. Out of the proceeds Harriet received in her lifetime the sum of $1138, in various sums, running from January 7th 1867, until June 30th 1871. After the consummation of the proceedings in the action of partition, on the 25th of March 1868, the entire family of the testator, including his widow and her second husband, joined in executing a release to Matthew Jack, his heirs and assigns, of all their estate, shares, purparts, dividends, right, title, interest, property, claim and demand, of, in, to or out of the premises called the “Best” farm. No attempt has been made to impeach this release on the ground of unfairness or fraud. Now clearly, if the Orphans’ Court had jurisdiction, of which I shall treat hereafter, these pro [337] ceeclings, embracing the entire Jack family, vested the estate in -the “Best” farm fully in Matthew Jack, By the decree in the Orphans’ Court, the purpart awarded to Matthew vested in him in severalty, while the portion taken in behalf of his wards vested in them also in severalty, from the other children: Spangler’s Appeal, 12 Harris 424. To say that he must hold his purpart in trust for his wards, whilst they can take to-themselves their portion freed from any trust, title or estate in him, is simply to nullify the decree of the Orphans’ Court as to him and yet maintain it as to them. Nothing short of gross unfairness or fraud added to his relationship as their guardian can so avoid the decree; especially after they have confirmed the proceeding by making partition in the Common Pleas of the portion awarded to them jointly by the Orphans’ Court. The Orphans’ Court is a tribunal specially charged with the care and protection of the estates of minors. The valuation is made by disinterested, sworn appraisers, and must be confirmed by the court before the rights of the parties can be affected. Each party in such a proceeding takes the purpart awarded to him in severalty, and imhis own right, unless when he acts in accepting for another, as a husband for his wife, or a guardian for his ward. The court judges of the propriety and fairness of the proceeding before it, and is bound to see the interests of minors fairly represented and protected. Then what was the character of the release following these proceedings ? Clearly it was a family arrangement to carry out and reaffirm what had been done before, and not a mere release from a ward just out of leading-strings, such as is condemned in Stanley’s Appeal, 8 Barr 431; Eberts Eberts, 5 P. F. Smith 110, and other cases. Such papers, obtained by a guardian before his influence has been fairly thrown off, are justly condemned. But here the whole family, all bearing similar relations to the subject, united in the release, attesting, by a common concurrence, its fairness and propriety. To say that in such a case the mere relationship of guardian and ward is primá facie presumptive of overreaching on part of the guardian, and will set aside the legal effect of the award in the partition by a common and disinterested tribunal, having jurisdiction of the subject, is to carry the doctrine of Stanley’s.Appeal and similar cases to an unwarranted length. It contradicts also what so frequently has been said of the sacredness of family arrangements: Hume v. Hume, 3 Barr 144; Johnston v. Furnier, 19 P. F. Smith 449. Even a parol partition, when fairly made, i.s binding on infants and married women: Calhoun v. Hays, 8 W. & S. 127. In that case, Judge Kennedy, after referring to authorities with his usual caution and industry, concludes that “ it follows from the established doctrine laid down abovo that if it be done by agreement of the parties without legal process, and be fair and equal, it will be good and binding upon all, whether femes [338] covert or not, if their husbands join; or minors, if with the consent of their guardians.” It is well to .notice also that the reason given for supporting a partition without legal process, if fair and equal, is, that the same thing could be compelled to be done at law, and be binding on infants and married women. The doctrine of Calhoun v. Hays is reaffirmed in McMahan v. McMahan, 1 Harris 376; Darlington’s Appropriation, Id. 430, and Williard v. Williard, 6 P. F. Smith 119. What we have said in regard to the partition bears equally upon the award of the “Bushfield” farm, taken by Matthew Jack under the same proceeding in the Orphans’ Court. He holds this also in severalty under the partition, unaffected by any trust for his minor wards, unless, as it has been supposed, the Orphans’ Court had no jurisdiction in the premises. But of this jurisdiction we entertain no doubt. This was a case both of testacy and intestacy, four of the parties being minors and children of William Jack, three of whom were devisees and the fourth entitled to one-seventh by legal intestacy. The fourth section of the Act of 13th April 1840 extends the jurisdiction of the Orphans’ Court in partition “to all cases of testacy wherein the parties interested or any of them are minors, or the course of descent is not altered by the provisions of the last will and testament of the decedent, and the same proceedings shall be had thereon as in cases of intestacy, subject, however, to the provisions of the said last will and testament and the true intent and meaning of the testator.” The two clauses in this act are in the disjunctive, and, says Gribson, C. J., “ whether the land descended or passed by the will, the object was to give the Orphans’ Court concurrent jurisdiction whenever one of the parties should be a minor, and to commit the protection of his interest to its peculiar care:” Wain’s Appeal, 4 Barr 502. This was followed by the Act of 10th April 1849, § 10, which extended the jurisdiction “ to all cases of testacy wherein the whole or a part of the real estate of the decedent may be devised to two or more children; and when such real estate is devised to two or more children, to be held and enjoyed in unequal proportions, the said court shall decree such an appropriation of the moneys arising therefrom as will best effectuate the intentions of the testator.” This legislation is clearly sufficient to embrace the case before us, both in its letter and spirit. Then as to the subject of the devise. The “ Bushfield” farm is not devised to the guardians to be sold and converted into money. The devise carries it directly to the six children, subject only to the exercise of a conditional power of sale, dependent on the joinder or consent of the widow. It does not fall, therefore, within the scope of the decision in Selfridge’s Appeal, 9 W. & S. 55. There was no absolute direction to sell and convert into personalty; the widow never demanded a sale; and besides, the devise was [339] opened by operation- of law, to receive a seventh child under the intestate law. ' - ■ The objection to the jurisdiction of the Orphans’ Court is therefore not sustained, and the partition must stand and have its due operation and legal effect. These are the only questions we deem it necessary to notice, and we therefore affirm the decree and order the costs of the appeal to be paid by the appellant.