Steel's Appeal

The judgment of the Supreme Court was entered, Per Curiam. — The Act of March 29th 1832 expressly gave to the widow of an intestate the power to apply to the Orphans’ Court of the proper county for partition of the real estate of the decedent. It has been held that the widow’s share may be set out in kind to her for life; though she cannot accept under an appraisement or a partition without allotment to her: Bishop’s Appeal, 7 W. & S. 251; Painter v. Henderson, 7 Barr 48. Yet, having the right to apply for partition, it is clear, jurisdiction taken under her petition is not lost. Her right to petition exists, where there is but a single lineal descendant: Bishop’s Appeal, supra. The proceeding, therefore, must be prosecuted to the end, so as to give to her the right she seeks to have enforced, to wit: a charge upon the real estate in the hands of the heir, or, if he will not accept, in the hands of a purchaser under an order of sale. If this cannot be effected, her remedy by petition for partition would be useless and illusory; for it is seldom an estate can be so divided as to set apart a portion of it to the widow for life. Nor does it make [225] any difference, since the Act of 20th April 1869, whether the decedent died testate or intestate, a widow refusing to take under the will being authorized to proceed for her share under the intestate law, in lieu of dower: 1 Brightly 530, pi. 10, 11. This act expressly directs the proceeding to go on to a sale, under her application, thus confirming the interpretation given to the Act of 1832. See, also, Neeld’s Appeal, 20 P. F. Smith 113; Coates’s Appeal, 29 Id. 235. It is clear the Orphans’ Court had jurisdiction and power to decree a sale, and under it to secure the widow’s interest upon the property, according to the provisions of the Act of 1832. It is evident that a mortgage or other encumbrance placed by the heir or his alienee, after the death of the intestate, upon the premises, cannot affect the title passing under the Orphans’ Court sale. The law makes express provision for a distribution of the proceeds of the sale among lien creditors. Decree affirmed, at the costs of the appellant, and the appeal dismissed.