Dech v. Gluck
| Decision Date | 04 May 1864 |
| Parties | Dech, Administrator of Dreisbach, <I>versus</I> Gluck. |
| Court | Pennsylvania Supreme Court |
The plaintiff's intestate accepted a share of his deceased father's estate at the valuation made in partition, and entered into recognisance for the payment of the interest on the same to the widow for life, and the principal to the heirs entitled at her death.
The effect of the recognisance, under the facts stated, on the interest of the representatives of the recognisor, is the question now before us. Before proceeding to this, we may as well say here, that, as no objection seems to have been made to the administrator as a proper party in agreeing to the case stated, we think it too late now to interpose it, and this is all the notice we need take of this objection.
Was the interest of the recognisor, in the valuation of his purpart, the one-third of which constituted the amount of the recognisance in favour of the widow and the heirs, extinguished by operation of law? That it would be, if the estate remained in his hands until the widow's death there is no doubt. Riegle v. Seiger, 2 Penna. Rep. 340, and subsequent cases, clearly establish this. So too the same thing would follow from a sale of it by him, unless he expressly contracted for an opposite result: Updegrove v. Updegrove, 1 Barr 136; Shelley v. Shelley, 8 W. & S. 153.
If a different result be required for the purpose of subserving the ends of justice, it comes of the facts more than of the law. The plaintiff's intestate, the recognisor, died thirty-three years before his mother, the widow of Jacob Dreisbach, the elder. During that period the property, bound by the recognisance of Jacob Dreisbach, Jr., deceased, passed under one Orphans' Court sale, afterwards at private sale, and finally by proceedings in partition in the Orphans' Court. We do not mean to enter into any elaborate analysis of the admitted facts to prove what seems pretty clear, that, as the land derived from Jacob Dreisbach, Jr., passed from owner to owner, this entire encumbrance in numero to the cent was always estimated in fixing its value, and dealt with by the several purchasers as a thing to be paid off and discharged by them. The cases of Updegrove v. Updegrove and Shelley v. Shelley, already cited, clearly decide that such an encumbrance may be kept alive for the benefit of the encumbrancer as well as his co-heirs, if the contract be made on passing the title that it shall be so. The reservations must be such as are susceptible of clear proof, and not objectionable as a secret or parol lien.
After the death of Jacob Dreisbach, the younger, his administrators petitioned the Orphans' Court of Northampton county for an order to sell the land which the intestate had accepted as his share of his father's estate, "subject to the payment of the interest of $4108.03 (afterwards reduced by correction to $3685.85), annually to Margaret, the widow of Jacob Dreisbach, the elder, deceased, during the time of her natural life, and the principal sum to the heirs and legal representatives of the said intestate's father, Jacob Dreisbach, the elder, after the death of said Margaret Dreisbach."
The court granted the petition upon the following conditions, to wit, $4108.03 ($3685.83) to remain charged on the premises during the lifetime of the widow, the interest to be paid her annually. After a sale of the premises, and confirmation, a deed was made and accepted with this clause of reservation, viz.,
Here, it seems to me, is a clear order of sale upon the terms of continuing the entire charge, followed by the acceptance of deeds with the most distinct reservation of it. But this is not all. The administrator sold the land at $51 per acre, and the purchase-money received by him in full was $2208.38. This sum, added to the sum of the entire recognisance remaining a charge, aggregates exactly the purchase-money at $51 per acre, viz., $5893.21. Thus it demonstrably appears that the purchaser had a credit on the purchase-money for the shares of all the heirs in the...
To continue reading
Request your trial
-
Carrow v. Headley. Fitzgerald's Appeal
...629. John G. Johnson, Frank P. Prichard with him, for appellee, cited: Kline v. Bowman, 19 Pa. 24; Shelly v. Shelly, 8 W. & S. 153; Dech v. Gluck, 47 Pa. 403; Moore v. Harrisburg Bank, 8 Watts, 138; Bryar's Ap., 111 Pa. 81; Updegrove v. Updegrove, 1 Pa. 136; Stecker v. Shimer, 5 Whart. 452;......
-
Dull v. Slater
...Updegrove v. Updegrove, 1 Pa. 136; Erb v. Huston, 18 Pa. 369; Stecker v. Shimer, 5 Wharton, 452; Reigle v. Seiger, 2 Pa. & W. 340; Dech v. Gluck, 47 Pa. 403; Steckel Koons, 102 Pa. 493; Hollenberger v. Yaukey, 145 Pa. 179. F. P. Rush, of Johnson & Rush, for appellees. -- The charge was spec......
-
Vetter v. Vetter
...prevent a merger appears, nor does anything appear to show that it was the interest of John J. Vetter, Jr., to prevent a merger. In Dech v. Gluck, 47 Pa. 403, it was held that was no merger, solely because the contract of the parties was expressly to the contrary; and the same remark applie......
-
Hurst v. Spotts
...the land subject thereto, to avoid his contract on such a very technical ground. The language of Mr. Justice Thompson, in Dech v. Gluck, 47 Pa. 403, 410, is applicable: "Here again is the clearest evidence that the defendant accepted the purpart of the estate of Jacob Boyer, deceased, in ri......