Sarver's Estate

• Decision Date: 15 July 1938
• Docket Number: 145-1938
• Citation: 200 A. 709,132 Pa.Super. 238
• Parties: Sarver's Estate
• Court: Pennsylvania Superior Court

200 A. 709

132 Pa.Super. 238

Sarver's Estate

No. 145-1938

Superior Court of Pennsylvania

July 15, 1938

Argued April 27, 1938

Appeal from decree of O. C. Somerset Co., 1906, No. 85, in Estate of William Sarver, deceased.

Petition by heirs of decedent for decree to enforce payment of their respective shares in a dower principal set aside in a partition proceeding.

The facts are stated in the opinion of the Superior Court.

Decree entered in favor of petitioners, opinion by Boose, P. J Respondents appealed.

Errors assigned, among others, were findings and conclusions of the lower court.

Decree affirmed.

Joseph Levy, for appellants.

Frank R. Coder, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Baldrige, J.

A petition of certain heirs of William Sarver was presented to the Orphans' Court of Somerset County for a decree to enforce the payment of their respective shares in a dower principal set aside in a partition proceeding.

William Sarver died, intestate, August 31, 1906, the owner of a certain tract of land located in Allegheny Township, Somerset County, containing 229 acres. He left to survive him a widow five children, and four grandchildren, the children of a deceased daughter. A partition proceeding was instituted, and on February 24, 1908, the land was awarded to William V Hillegass, in the right of his wife, Emma, a daughter of the decedent, for the sum of $ 3,216.60. Hillegass entered into a recognizance for the payment, in addition to the costs, of $ 2,003.27 to the heirs in one year, with interest, and to the widow, annually, of the interest on $ 1,001.63, and, at her death, of the principal to the heirs, and, further, to pay to Amanda Sarver, widow of Daniel Sarver, who died ten days after his father, the interest on $ 111.29, and, at her death, the principal to Daniel's heirs.

About a month after the recognizance was entered into, Hillegass paid to most of the heirs, including the petitioners, their respective interests in two-thirds of the purchase money. A release was written, which included a schedule of the distribution of the fund among the widow and heirs, wherein it is stated, to wit:

"Whereas, William V. Hillegass, and the widow and heirs of said deceased, (and) prefer to discount their respective interests, and reduce the whole purchase money to a cash basis . . . . We Hester Sarver, widow of Daniel Sarver, dec'd. and the children and grand-children of William Sarver dec'd., do hereby acknowledge that we have this day had and received of and from William V. Hillegass, to whom the real estate of William Sarver, dec'd. . . . . was decreed and awarded . . . . the sums set opposite our respective names, to-wit: Hester Sarver, $ . . . .: Lucinda Crissinger, $ 333.88; to Elizabeth Miller, $ 333.88; Emma J. Hillegass, $ 333.88; Rosie Glessner, $ 333.88; John Hersh, $ 83.47; Edith Kerkenstein, $ 83.47; Elmer Hersh, $ 83.47; Effie Long, $ 83.47; Cora Ware, $ 55.64; Artie Sarver, $ 55.64; Rosie Sarver, $ 55.64, and Clarence Sarver, $ 55.64, Amanda Sarver . . . . in full satisfaction and payment of the 1/3 dower interest in said tract of land, and of the two-thirds interest, payable in one year with interest, that is to say, in full satisfaction of payment of our entire share, purpart and dividend due, payable and coming to us and each of us, out of said real estate, in law or equity, now or to which we might be entitled at any time hereafter."

This paper was not signed by Hester Sarver, widow of the deceased, or by Amanda Sarver, widow of Daniel, and it will be noted that no amount was set opposite their respective names, nor did Lucinda Crissinger or Elizabeth Miller, children of the deceased, sign it, although these two daughters subsequently executed separate receipts for $ 333.88 as their individual shares in two-thirds of the purchase money, but they did not release their interests in the dower principal payable upon the death of the mother. The body of this paper was in typewriting, but the amount mentioned as due each heir was written in ink. The total amount set opposite all the names of the heirs, including the $ 111.29 due the heirs of Daniel upon the death of his widow, is $ 2,003.27. This was the exact sum due for their two-thirds interest in the real estate sold, not including their shares in the dower principal. When the paper was drawn, no doubt the purpose of Hillegass was to pay the two widows and the heirs all their interest and to satisfy the recognizance; that would account for the phraseology. It is very apparent, as the widows and two of the children did not sign, that plan was not consummated. Certainly the figures do not represent correctly their full interest in the recognizance. Our conclusion, that this paper, when signed, was not intended to be effective as a full release, is confirmed by the subsequent action of Hillegass and his successors in title.

On February 24, 1909, Hillegass presented a petition to the court for a reduction of the amount of the recognizance which originally had been entered in the sum of $ 6,009.82 conditioned to secure Hester Sarver, the deceased's widow, her interest and the heirs their respective shares. The petition set forth, inter alia, as follows: "Your petitioner, having paid out the two-thirds interest of the heirs and the interest due the widows to this date and the costs of the proceedings, prays your Honor to change the aforesaid decree in so far as the amount and condition of the recognizance is concerned, directing that he shall enter into a recognizance in the sum of $ 2,226.64 condition to pay the widow, Hester Sarver, $ 60.09 on Feb. 24, 1910, being the...