Perrine v. Kohr
| Decision Date | 21 April 1902 |
| Docket Number | 2-1902 |
| Parties | Perrine v. Kohr, Appellant |
| Court | Pennsylvania Superior Court |
Argued February 13, 1902 [Syllabus Matter]
Appeal by defendants, from judgment of C.P. Lycoming Co.-1900, No 25, on verdict for plaintiff in case of Louisa L. Perrine v Matilda Kohr et al.
Ejectment for land in the city of Williamsport. Before John Stewart, P. J., specially presiding.
The facts are fully stated in the opinion of the Superior Court.
Plaintiff presented these points:
1. That the admission of Stephen Pangborn of the fact of his marriage to Sarah Giles, and the admission of Sarah Giles of her marriage to Stephen Pangborn, are in the nature of direct proof of the marriage. Answer: I affirm that proposition; it correctly states the law.
2. That the testimony of Sarah Wyckoff is evidence of a ceremonial marriage. Answer: I affirm this; but you will understand that the evidence of this one witness establishes the fact of marriage; it is in the nature of direct evidence, and tends to prove a ceremonial marriage.
5. That if the jury find that Louisa Perrine, the plaintiff, was the legitimate child of Stephen Pangborn, and that Stephen Pangborn and W. S. Allen were the same person, then the orphan's court of Lycoming county had no jurisdiction to award the writ of partition in this case. Answer: Affirmed.
6. In proceedings in partition in the orphans' court in order to divest the interest of any person, it is necessary that such person should be named in the petition, decree and notices; and the 2d section of the act of April 14, 1835, makes this necessary to invest the court with jurisdiction over the person or his estate in the land. Answer: Affirmed.
7. If the jury find that Louisa L. Perrine, the plaintiff in this case, is the legitimate daughter of Stephen Pangborn and Sarah, his wife, and that Stephen Pangborn and W. S. Allen were one and the same person, the title to the real estate described in the writ in this case devolved upon her on the death of her father, Stephen Pangborn, known in this community as W. S. Allen, and the verdict must be for the plaintiff for the land described in the writ. Answer: Affirmed.
Defendants presented these points:
8. The orphans' court is by the act of assembly declared to be a court of record, with all the qualities and incidents of a court of record at common law; its proceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court. Answer: You observe in this point, gentlemen, it is stated that proceedings and decrees of the orphans' court are not to be reversed or avoided collaterally in any other court, in all matters within its jurisdiction. I affirm that proposition. It is not inconsistent with my rulings in respect to the points submitted by the counsel for the plaintiff. It remains true that if this plaintiff was the only legitimate heir of W. S. Allen, the orphans' court was without jurisdiction in the partition proceedings on his real estate begun on the petition of one who had no interest therein.
9. A decree of sale by the orphans' court is an implied adjudication of the legitimacy of those who have been named in the proceedings as children of the decedent, which the heirs at law are estopped from denying. Answer: This point is refused.
Verdict and judgment for plaintiff. Defendants appealed.
Errors assigned were above instructions, quoting them.
Affirmed.
C. LaRue Munson and John G. Reading, with them James B. Krause, William W. Hart and John T. Fredericks, for appellants. -- The orphans' court is a court of record with all the qualities and incidents of a court of record at common law; its proceedings and decrees in all matters within its jurisdiction should not be reversed or avoided collaterally in any other court: McPherson v. Cunliff, 11 S. & R. 422; Herr v. Herr, 5 Pa. 428; Painter v. Henderson, 7 Pa. 48; Lockhart v. John, 7 Pa. 137; Lair v. Hunsicker, 28 Pa. 115; Ihmsen v. Ormsby, 32 Pa. 198; Merklein v. Trapnell, 34 Pa. 42; Kreimendahl v. Neuhauser, 13 Pa.Super. 606.
Neither cohabitation, nor reputation of marriage, nor both, is marriage; when conjoined they are evidence from which a presumption of marriage arises: Yardley's Estate, 75 Pa. 207; Physick's Estate, 2 Brewster, 179; Wallace's Case, 4 Dick. 534.
Seth T. McCormick, with him Henry C. McCormick, for appellee. -- Marriage may be proved by the witnesses to its solemnization . . . . and by declarations and admissions of the parties to it, when against their interest.
The effect of a decree in partition in the orphans' court is to divide what descends to the heirs, not to transfer the title from the decedent to his heir; partition operates only upon the parties to it: Dresher v. Allentown Water Co., 52 Pa. 225.
A partition in the orphans' court leaves the title as it found it. It does not decide title or create new title: Harlan v. Langham, 69 Pa. 235; Davis v. Dickson, 92 Pa. 365; Goundie v. Northampton Water Co., 7 Pa. 233; Ross v. Pleasants, 19 Pa. 157; McClure v. McClure, 14 Pa. 134; Allen v. Gault, 27 Pa. 473.
A decree of an orphans' court is a nullity if pronounced upon a subject over which the court has no jurisdiction: Smith v. Wildman, 178 Pa. 245; Smith v. Wildman, 194 Pa. 294; Wallace's Case. 4 Dick. (N.J.) 530; Greenawalt v. McEnelley, 85 Pa. 352; Smith v. Smith, 52 N.J. Law, 207; Clark v. Clark, 52 N.J.Eq. 650.
Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
This is an action of ejectment in which a verdict has been found for the plaintiff. The facts upon which the verdict has been rendered are unusual. Their statement will serve to shorten the discussion of the questions of law involved. Stephen Pangborn was married to Sarah Giles in January, 1863, at Plainfield, N.J. On December 31, 1863, a daughter was born, who was called Louisa. She is the Louisa L. Perrine, the present plaintiff. Pangborn deserted his family shortly after the birth of the child. He went to Williamsport, __ Pa. __, and was there known as W. S. Allen. He died intestate, the owner of the land in dispute and other lands. After coming to Williamsport, Pangborn, or Allen, as he was there known, was married, on November 11, 1865, to Sarah Harman, of Williamsport, his Plainfield wife being still alive. He had by Sarah Harman four children. Allen (as he will be hereinafter called for convenience) died by being accidentally shot while hunting in the autumn of 1888. Administration was raised on his estate. On April 24, 1890, a petition in partition in the orphans' court was presented by Edward Allen, a son by the second marriage. The petition recited that W. S. Allen died seized of the lands described, and set forth that he left a widow and four children, naming the family resident in Williamsport. On May 10, 1890, the administrator intervened in the proceedings, asking that the partition be stayed in order that the administrator might make sale of the realty to pay the decedent's debts, the personal property being insufficient. Procedure on this petition was by order of the court suspended, and on the same day the order for inquest in the partition proceedings was awarded. After the return of the rule to take or refuse at the appraisement, the orphans' court, on December 2, 1890, made an order of sale. The several pieces of property were exposed to sale, sold, the return of the sale made on November 29, 1890, and the sale confirmed December 6, 1890. The defendants in this ejectment procured title through purchase of one of the properties. On March 6, 1891, the court adjusted the costs in the partition proceedings, and on March 14, 1891, determined the amount of the widow's dower. On March 22, 1891, the administrator delivered to the several purchasers deeds for the lands sold, pursuant to the order of the orphans' court. Subsequently, the administrator filed his final account in the orphans' court, which was confirmed absolutely, April 3, 1891. An auditor was appointed to distribute the fund. A part thereof was directed to be paid to creditors of the estate. The balance for distribution was awarded to the four children of the decedent living in Williamsport. Of these proceedings the present plaintiff, Louisa L. Perrine, the daughter of the decedent and the sole heir, had notice neither by personal service nor by publication. In December, 1899, the present action of ejectment was brought.
The jury has found from the evidence, as the case was submitted to them by the trial court, that W. S. Allen, whose real estate in Williamsport was thus sold, was in fact Stephen Pangborn, formerly of Plainfield, __ N.J. __, and that Louisa L. Perrine, the present plaintiff, is the legitimate offspring of the marriage in New Jersey. It follows that the marriage in Williamsport was bigamous; that the Williamsport children are illegitimate, and that the sole legitimate heir is the present plaintiff. The facts, therefore, upon which the plaintiff's case was founded have all been determined in her favor. The duty of this court is to determine whether, as alleged by the appellants, error was committed in the trial of the cause. There are numerous assignments of error, which raise, however, but five subjects of contention.
The appellants claim (1) that their title is protected by the record of the orphans' court in partition, showing purchase at a judicial sale, and that, the proceedings being regular on their face, they may not be attacked collaterally. This legal proposition is earnestly pressed. Its inapplicability to a case such as that before us has been determined by the Supreme Court in the case of Richards v. Rote, 68 Pa. 248. Mr. Justice Sharswood passed upon the...
To continue reading
Request your trial