Robeno v. Marlatt

Opinion, Me. Justice Sterrett : The question in this case arises upon the facts established by the special verdict, in substance as follows, viz.: Andrew Robeno, Jr., became the owner in fee of the lot in controversy by purchase in 1873, and died seised thereof in January, 1885, leaving to survive him a widow, Helen A. Robeno, and three minor children: Mary P., born May 9, 1882, and died June 5,1885; Helen E., born November 29,1883, and Andrew T., born September 5, 1885, several months after his father’s decease. The two latter, by their guardian, Robert E. Pancoast, are the beneficial plaintiffs in this suit. The defendants, Mary H. and Sallie A. Marlatt, claim as vendees of the widow, Helen A. Robeno, to whom her husband [41] by his last will and testament, dated September 2,1881, before either of his children was born, devised the lot in controversy, etc. On the other hand, it is contended on behalf of the plaintiffs, that inasmuch as their father’s will, in which no provision is made for his after-born children, was executed before they and their deceased sister were born, he must be deemed to have died intestate as to all his children; and hence they are entitled to the possession of the real estate of which he died seised, as if he had actually died without any will, subject however to the life estate of their mother in five ninths thereof, which by her deed is vested in the defendants. This contention is based on § 15, act of April 8, 1833, which is as follows : “ When any person shall make his last will and testament, and afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child or children after-born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if he had actually died without any will.” . In the court below, the case was submitted to the jury, who rendered a special verdict, embodying the facts of which the foregoing statement is the substance, and submitted to the judgment of the court whether, upon the facts so found, their verdict should be for the plaintiffs or for the ’ defendants. The special verdict also provides “ that if judgment be entered for the plaintiffs, it shall be for the premises described in the writ, subject to the life-estate of Helen A. Robeno in five ninths thereof,” etc. Judgment was entered in favor of the defendants on the special verdict, and the sole question raised by this appeal is whether the court erred in so doing. The facts established by the special verdict bring the beneficial plaintiffs within the very letter as well as the spirit of the act of 1833, above quoted, and entitle them as afterborn children, for whom no provision is made in the will of their father, to the same interest in the real estate of which he died seised “ as if he had actually died without a will; ” and, unless there is something to take their case out of the operation of the act, the judgment should have been in their favor. [42] The learned president of the Co.mmon Pleas correctly held that their right is not affected by the act of June 4, 1879, but he came to the conclusion that the deed of April 16, 1887, from the widow to the defendants, was a good execution of the power of sale given her by the will, and hence the plaintiffs were barred of their right of possession, and must look to the fund realized by the sale. In that we think he was mistaken. The power of sale, contained in the third clause of her husband’s will, is given to Mrs. Robeno in connection with the devise of all his real estate to her, “ her heirs and assigns absolutely forever.” In her deed to two of the defendants, she conveys in fee, not by virtue of the power of sale, but as sole devisee of her husband. The lot is described as being the premises which Thomas Hare and wife, by deed dated November 13, 1873, conveyed in fee to Andrew Robeno, Jr., who, dying seised thereof, devised the same in fee to his wife Helen A. Robeno. There is nothing whatever, either in the deed itself or dehors that instrument, to indicate that she conveyed or intended to convey by virtue of the power of sale specified in the will, or for the purpose of paying debts ; nor does it appear that there were any unpaid debts of the testator. It is not pretended that the sale was made in the due course of administration. So far as appears by the special verdict, it was made in the vendor’s own right and for her own benefit. It is true that, as to after-born children, a will is not absolutely void, but is void only in so far as the shares of the children are affected by it: Coates v. Hughes, 3 Binn. 498. The appointment of a testamentary guardian, and a power of sale for the payment of debts, have been upheld against such children, because they are not in conflict with either the letter or spirit of the act of 1833, above quoted. The appointment of a testamentary guardian relates only to the custody of the minor’s person and management of his estate. It cannot affect his interest as distributee under the intestate law. A power of sale for the payment of debts, like the appointment of an executor, relates to the administration of the estate, payment of debts, etc. The claims of creditors are of course superior to the rights of heirs or .distributees. The latter take nothing until the decedent’s debts are paid. Hence, a power of sale for the payment of debts, and the execution thereof, [43] cannot injuriously affect the right of afterborn children “to such purparts, shares, and dividends of the estate real and personal,” of their deceased parent, “ as if he had actually died without any will.” The language of the act is clear and explicit; and as heretofore construed by this court it undoubtedly applies to the facts of this case and sustains the contention of the plaintiffs: Walker v. Hall, 34 Pa. 483 ; Edwards’s App., 47 Pa. 144; Willard’s Est., 68 Pa. 327; Grosvenor v. Fogg, 2 W. N. 709; Hollingsworth’s App., 51 Pa. 518. To require the plaintiffs to look only to the proceeds of the sale made by their mother would be denying them that interest in their father’s estate which the act declares they are entitled to, namely, “ such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if he had actually died without any will.” The specifications of error are sustained. Judgment reversed; and judgment is now entered on the special verdict in favor of the plaintiffs for the premises described in the writ, subject to the life estate of Helen A. Robeno in five ninths thereof, which is vested in the defendants.