Estate of Snively

Opinion, Me. Chief Justice Paxson : This was an appeal from the decree of the Orphans’ Court of Franklin County, distributing the estate of Martha J. Snively, deceased. The principal question was the effect of the recognizance given by the decedent within a year before her death, for the real estate of her deceased father, awarded to her by the Orphans’ Court under proceedings in partition. The auditor held that inasmuch as the decedent was a married woman when she took said land and gave said recognizance, the recognizance was a lien only upon that portion of the real estate which the recognizor acquired by the decree of the court awarding the. same to her, and that it was not a lien upon that portion of said real estate which she- took in her own right by descent. Distribution was made accordingly. The Orphans’ Court, upon exceptions filed, reversed the auditor and held that the recognizance was a lien upon her whole interest in the land, both as to the share she took under the proceedings in partition, and the share she took by descent. In this we think the learned judge was right. No question arises here as to the respective rights of the husband and wife to bid for the property at the time of the partition. Nor does any other question arise as to the regularity of those proceedings. No appeal was taken and we have, therefore, the difinitive 'decree of the Orphans’ Court settling that matter. The only question left is the effect of the recognizance. [263] It was contended that because the recognizor was a feme covert she could only bind the interest she acquired; that the recognizance had no greater effect than a judgment given by a feme covert for the purchase of real estate, which can only be enforced against the particular real estate thus acquired. We see no analog)» between a purchase-money judgment given by a married woman and a recognizance given by her for owelty in proceedings in partition. It is well settled that such recognizance is a lien upon the whole estate thus taken: McCandless’ App., 98 Pa. 489; Long v. Long, 1 W. 265; Cubbage v. Nesmith, 3 W. 314. This is conceded as to such recognizances generally, but it was contended that the rule does not apply to a recognizance given by a married woman. The law makes no such distinction. The legal effect of a recognizance in the Orphans’ Court is not changed because given by a feme covert, We need not discuss her right to bid, the right of the Orphans’ Court to award the property to her, and her right to give the recognizance in question. All this is settled, as before observed, by the decree of the Orphans’ Court. An error in either of these particulars would render the decree voidable merely. It could not be attacked collaterally. It was held in Painter v. Henderson, T Pa. 48, that where in partition, on petition of collateral heirs, land was assigned by the court to the widow at a valuation, and the time for an appeal had elapsed, a purchaser cannot object for the defect, although such decree was not authorized by an act of assembly, which allows an assignment to heirs only. In the case in hand the wife bid for the property; it was awarded to her by the court, and the recognizance was given in obedience to the order and decree of the court. It is idle, now, upon the distribution of the proceeds of the sale of this same real estate after her death, to call in question the regularity of the proceedings of the Orphans’ Court or the effect of the recognizance. The decree is affirmed, and the appeal dismissed at the cost of the appellant.