Painter v. Henderson

• Decision Date: 18 October 1847
• Citation: 7 Pa. 48
• Parties: PAINTER <I>v.</I> HENDERSON.
• Court: Pennsylvania Supreme Court

7 Pa. 48

PAINTER v. HENDERSON.

Supreme Court of Pennsylvania.

October 14, 1847.

October 18, 1847.

Oct. 14.

IN error to the Common Pleas of Westmoreland.

Foster and Cowen, for plaintiff in error.—The Orphans' Court has no jurisdiction in partition but under the statute, and its discretion or power to assign the land is limited thereby. The heirs alone are entitled, and to them only could the court award the land. This decree was, therefore, not merely voidable for error, but void for want of jurisdiction, as much so as if the decree had been in favour of an entire stranger; hence no valid title passed under it, nor have the heirs affirmed the proceeding: 6 Serg. & Rawle, 267; 8 Serg. & Rawle, 173; 12 Serg. & Rawle, 171; 14 Serg. & Rawle, 184; 4 Binn. 97; 1 Penna. Rep. 371; 4 Barr, 502. There is no evidence of an agreement by the defendant to take the risk of these defects; hence he may defend. The manner in which Henderson acquired the property amounted to a legal fraud, and made him trustee for the heirs, and the repurchase by him whilst he continued administrator revived it: Bovey v. Smith, 2 Ca. in Chan. 126.

Armstrong and Williams, contrà.—The widow was a party to the proceedings under the act 1832, s. 36, and the court might award her the land: Bishop's Appeal, 7 Watts & Serg. 251; Young v. Bickel, 1 Serg. & Rawle, 467; or the court might, under the equity of the act, have decreed her the land, as it can to the alienee of an heir; 7 Watts, 438. But clearly the court had jurisdiction over the estate in these proceedings: act 1832, s. 46; Johnson v. Matson, 1 Penna. Rep. 371; and a decree in the premises can no more be examined or disputed collaterally for errors apparent than for those dehors the record; 4 Watts, 251; 8 Watts & Serg 402; Allen v. Dundas, 3 Term Rep. 135; act 1832, s. 2. It is conclusive on the parties being in rem: 1 Greenl. Ev. s. 525, 541; McPherson v. Cunliffe, 11 Serg. & Rawle, 422; Richter v. Fitzsimmons, 4 Watts, 251.

Oct. 18. ROGERS, J.

The defendant objects to the recovery of the plaintiff because of an alleged defect of title in Christine Henderson, the vendor. The objections are two-fold: first, to the title of Alexander Henderson, through whom the vendor claims; and, secondly, to the decree of the Orphans' Court vesting the property in the widow of the intestate.

The law has wisely forbidden a trustee, administrator, or executor, to act in the double capacity of seller and buyer. The transaction is a legal fraud. But a deed in such case is not absolutely void; and, therefore, no party to the deed, or others claiming under him, are allowed to repudiate it; neither can strangers avail themselves of such an objection. It is voidable only by the cestui que trust and heirs. Nor can the administrator purchase by a third person with a view of having the conveyance afterwards made to himself. The principles are well settled, and, if it appeared that McClurg purchased for Henderson, it would be such a defect in the title as would avail the defendant. But this nowhere appears in the special verdict, nor can we infer it. For aught that we know, the purchase of McClurg was bona fide for himself, without any fraud or collusion with Henderson. Besides, the heirs of William Hamilton, who alone can avoid the sale, have affirmed it by suit against Christine Henderson in her lifetime, as surviving administrator of William Hamilton, and also against the executors of John Millegan, deceased, administrator of William Hamilton. There is nothing, therefore, in this point.

But, it is said, the title is defective because of the decree; that the several acts of Assembly give no power to the Orphans' Court to decree the real estate of an intestate to the widow, and that the decree is void. This proposition resolves itself into two points, each of which I will proceed briefly to examine.

The vendor contends, that under an equitable construction given to the acts, the Orphans' Court may decree the estate to the husband of one of the heirs, or to an alienee of one of the children. And for these positions he relies on Johnson v. Matson, 1 Penna. Rep. 371, and Ragan's Estate, 7 Watts, 441, where these points are expressly decided. But under the act of the 29th March, 1832, no room is left for an equitable construction, so as to bring the case of the widow within it. The intention of the legislature is too plain to admit of doubt. In the 36th sect. the right is given the widow to apply to the court for an inquest to make partition of the real estate of the intestate, but by the succeeding section of the same act, where the estate cannot be divided among the lineal descendants, or the widow and such descendants, without prejudice to, or spoiling the whole, the inquest are directed to make and return a just appraisement thereof to the Orphans' Court, and thereupon the court may order the same to the eldest son, and successively to the other lineal descendants in the order presented in the act. And by the 56th sect., when the decedent leaves no lineal descendants, the like proceedings shall be had in all respects, on the application of the persons in whom the estate shall vest in possession. In neither of the sections is the widow named. This we cannot suppose to be accidental. The inference is by no means a strained one, that it was intended to exclude the widow, for otherwise we cannot account for the fact that nothing is said as to the order of the time she may elect to take the estate. The 31st and 56th sections refer only to children and collateral heirs. And what seems to make this point perfectly clear is, that in the 52d sect. it is directed, that upon an appraisement or valuation of real estate made as is provided in the act, should all the heirs neglect, after due notice, or refuse to take the same at the valuation, the court shall, on the application of any one of the heirs, grant a rule upon the other heirs and others interested, to show cause why the estate so appraised...