DeWitt v. DeWitt

• Decision Date: 21 April 1902
• Docket Number: 316
• Citation: 51 A. 987,202 Pa. 255
• Parties: DeWitt v. DeWitt, Appellant
• Court: Pennsylvania Supreme Court

51 A. 987

202 Pa. 255

DeWitt v. DeWitt, Appellant

No. 316

Supreme Court of Pennsylvania

April 21, 1902

Argued February 25, 1902

Appeal, No. 316, Jan. T., 1901, by defendant, from decree of C.P. Wyoming Co., on bill in equity in case of Celestia DeWitt v. Ettie M. DeWitt, Widow of F. W. DeWitt, Deceased Decker DeWitt, Clinton DeWitt, Melissa DeWitt and Perry S Billings. Reversed.

Bill in equity for an account and assignment of dower.

The case was referred to E. J. Jorden, Esq., as master, who reported in favor of the plaintiff.

Exceptions to the master's report were dismissed, and a decree was entered in favor of the plaintiff.

Errors assigned were in dismissing exceptions to the master's report.

The decree is reversed and the record remitted, that the errors in the account stated may be corrected in accordance with the views expressed in this opinion, the costs on this appeal to be paid by the appellee.

C. O. Dersheimer, for appellant. -- The widow's right, her "statutory share" in lands, sometimes called statutory dower, attaches only to lands of which her husband died seized: Act of April 8, 1833, P.L. 315, sec. 15; Gray v. McCune, 23 Pa. 447; Riddlesberger v. Mentzer, 7 Watts, 141; Leinaweaver v. Stoever, 1 W. & S. 160; Gourley v. Kinley, 66 Pa. 270; Benner v. Evans, 3 P. & W. 454.

The widow of D. D. DeWitt elected to take the annual rents, issues and profits from these lands, collected by herself in part, and the balance by her son, F. W. DeWitt, as her agent, in lieu of having her share set out under the statutory proceedings.

The auditor's finding of fact based upon insufficient evidence will be reversed on appeal: Fehl's Est., 13 Pa.Super. 601.

The widow cannot collect the rents herself or by her agent, and still have damages for detention of dower, from the same lands, any more than she can collect damages for detention of dower from lands occupied by her as widow: 1 Cord on Legal and Equitable Rights of Married Women, sec. 544; Paul v. Paul, 36 Pa. 270.

A widow may estop herself from right to claim dower by her positive acts: Cunningham's Estate, 137 Pa. 621; Share v. Anderson, 7 S. & R. 43; Zeigler's Appeal, 1 Chester County Rep. 515; Evans v. Evans, 1 Phila. 113.

In equity an account will only be decreed for the time the premises were in the actual occupation of the heir or feoffee: Sandback v. Quigley, 8 Watts, 460, 464.

James E. Frear, for appellee. -- A joint owner can demand in equity an accounting from the other owners for profits under Statute 4 Anne: Frisbee's Appeal, 88 Pa. 144; Enterprise Oil & Gas Co. v. National Transit Co., 172 Pa. 421.

This additional remedy of the widow as joint owner explains the cases of Sandback v. Quigley, 8 Watts, 460, and Zeigler's Appeal, 1 Chester Co. Reps. 515.

The action of the widow for her dower rights is de terris. The tenant or owner at the time of suing out the writ is liable for the rents received by the owners before him: Brewster's C. P. Practice, sec. 1097; Section v. Jamison, 7 Watts, 533; Heller's Appeal, 116 Pa. 534.

Mere forbearance or laches will not deprive the widow of her right to an account for rents and profits: Worthington v. Worthington, 9 Kulp, 513; Karstein v. Bauer, 4 Penny. 366; Heller's App., 116 Pa. 534.

Even if the widow did not sign the deed given in exchange, she can elect which land she will claim her dower from: 4 Kent's Com. 59.

Before McCOLLUM, C.J., MITCHELL, DEAN, BROWN and MESTRAZAT, JJ.

OPINION

MR. JUSTICE BROWN:

In her bill for an account of the rents, issues and profits of the real estate of her deceased husband, and for the assignment of her dower, the appellee included an undivided sixth in what was known as the Putnam street property, of which he had not died seized, but which was conveyed to his estate on June 19, 1890, more than ten years after his death. The consideration was $1.00 and "other property deeded" to the grantors, and it passed to them from the decedent's estate. The master was of opinion that the presumption was that the "other property deeded" in exchange for this one-sixth interest was land of which the husband had died seized, and that neither F. W. DeWitt, the son of the decedent, nor the estate of Perry S. Billings, his successor in title, could be heard to question the right of the widow to demand her dower in it after it had been so taken in exchange for land of which she had been dowable. This conclusion of the master, sustained by the court, was based upon the analogy of the common-law rule, that, if the husband seized of an estate of inheritance, exchanged it for other lands, the wife should not have the dower of both estates, but should be put to her election: Co. Litt, 31 b.; 2 Bl. Com, 129; 4 Kent, 59; 2 Kerr on Real Property, 797. With us, as long ago as Kelly v. Mahan, 2 Yeates, 515, it was held that dower lay for lands held by improvement right alone, the court saying, "We have gone too far into the improvement doctrine, to exclude a widow from her claim of dower of lands, held under such equitable, though imperfect title, so frequently recognized by the laws and usage of this state;" and in Pritts v. Ritchey, 29 Pa. 71, it was held that an equitable title was equivalent to a legal seisen. The finding that the appellee was dowable of this sixth interest was correct, and, but for error in directing that she was entitled to an account of the rents, issues and profits from the death of her husband, committed in view of a fact which ought to have been found, the decree appealed from would not be disturbed.

Counsel for the appellant, W. P. Billings, administrator of the estate of P. S. Billings, deceased, asked for a finding of the fact that, from the death of D. D....