Borland v. Nichols

• Decision Date: 19 September 1849
• Citation: 12 Pa. 38
• Court: Pennsylvania Supreme Court
• Parties: MARGARET BORLAND <I>v.</I> JAMES NICHOLS.

12 Pa. 38

MARGARET BORLAND v. JAMES NICHOLS.

Supreme Court of Pennsylvania.

September 19, 1849.

Sept. 19.

ERROR to the District Court of Allegheny.

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Shaler, for the plaintiff in error.—The widow's acceptance of the devise to her did not bar her of her dower in the property, which he sold and conveyed in his lifetime, and in the conveyance of which she did not join: 1 W. & S. 160.

Williams and Kuhn, contrà.—Was the property, aliened by Borland in his lifetime, a part of his estate within the meaning of the Act 8th April, 1833? If not, demandant has no title. Her claim is founded on her husband's seisin, and she is only entitled as his doweress.

Dower, in the Act of 1833, means dower at common law, and can only arise here in cases like the present, which do not fall within the intestate laws. That Act creates a new interest in the wife, which is to take the place and be received "in lieu and full satisfaction of her dower at common law." It is only to a case of alienation before death, or devise to a stranger, that the phrase in the statute of wills can now be properly applied.

The Act was for the relief of the heir, and was only an extension of the equitable doctrine of election. The election is entirely for the decision of the widow. A recovery here would defeat the purpose of the Act. The warranty in the deed to Craig is a general one, — "to have and to hold, &c., for ever, warranted and defended by the said Borland, his heirs, &c., for ever, free from the legal claim of all persons whatever." A recovery here would be followed by an action against the heirs on the warranty, a recovery in which would enable the widow to charge the additional dower on the very estate of which the husband died seised.

The case in 1 W. & S. 160, arose under the intestate laws, which profess only to legislate on property of which the intestate died seised, and that which descends to his heirs. The provision in sec. 15 is only to be taken with reference to that part of his estate.

It cannot be affirmed here that Borland only intended to sell his own interest. He did not so profess, and has warranted the title of the whole generally, so as to render his estate liable, on a recovery in this suit.

The opinion of this Court was delivered by BELL, J.

This controversy is identical, in principle, with Leinaweaver v. Stoever, 1 W. & S. 160, the reasoning of which is unanswerable. It is true, the questions presented by the two cases arise under different statutes, but both of these have the same object in view, and are, therefore, subject to the same construction. If indeed, there be any difference discoverable in the language of the two enactments, in the particular now under consideration, it is in favour of the claim set up in this action. This is made subject to the Act of 1797, the 10th section of which provides that an accepted devise of any portion of a testator's estate to his widow, "shall be deemed and taken in lieu and bar of her dower out of the estate of her deceased husband, in like manner as if the same was so expressed," while the Act of 1794, under which Leinaweaver v. Stoever was adjudicated, directs that "the share of the estate of an intestate, in this Act directed to be allotted to the widow, shall be in lieu and satisfaction of her dower at common law." Yet notwithstanding the comprehensiveness of these words, which, taken literally, would seem to include all a widow can claim at common law, it was solemnly adjudged that accepting the statutory interest in the lands left by her deceased husband, will not bar her of dower in lands aliened by him in his lifetime, without her co-operation. And why? Simply because, by the unwritten law, a husband has no power to destroy his wife's estate in dower, by alienation, and he is not helped to do it by the Act of 1794, which, like its successor of 1833, has reference solely to the realty of which the baron was owner at the time of his death: Riddlesberger v. Mentzer, 7 W. 141. If this be the true meaning of the older statute, and I do not understand it is denied, by what warrant we can ascribe a broader signification to the Act of 1797, which merely substitutes the accepted devise for the widow's interest in "the estate of her deceased husband;" a description having no application to property in which he divested himself of all estate prior to his death. The truth is, no one can read these...