SUPREME COURT of Pennʃylvania:
WALTON verʃus WILLIS.
T
HIS was an appeal from the Orphan's Court of the county of Philadelphia. It was argued in January term by Levy and Tilghman for the Appellant; and Sergeant and Ingerʃol for the Appellee. And now the CHIEF JUSTICE ſtated the caſe, and delivered the opinion of the Court, in the following manner.
M‘KEAN, Chieƒ Juʃtice. Elizabeth Willis being ſeized of a meſſage and lot of land in the city of Philadelphia, with the appurtenances, died inteſtate, leaving iſſue a daughter name Elizabeth, who had intermarried with Samuel Walton, the Appellant, and by him had iſſue two ſons, Joʃeph and Booz; and four grand-children, to writ, Thomas the Reſpondent, Solomon, Muʃgrove and Rebecca, being the children of her ſon Solomon Willis deceaſed, who had died, before her, inteſtate. The daughter, Elizabeth Walton, died after her mother, and her huſband, the Appellant, and their two children, before named, ſurvived her. Thomas Willis, the Reſpondent, applied by petition to the Orphan's Court of the county of Philadelphia, held on the 1ſt of April, 1782, for a partition of the premiſſes ; or, if they could not be divided without prejudice to, or ſpoiling the whole eſtate, that a valuation thereof might be made, agreeably to the directions of the Acts of Aſſembly in ſuch caſe made and provided. An inqueſt was accordingly had, and a return made, that the premiſſes could not be divided without prejudice to, or ſpoiling the whole, and valuing the ſame at £358. This return was confirmed by the Court on the 10th of June, 1782, and the premiſſes were adjudged to, and accepted by Thomas Willis, the Reſpondent, at the above valuation; and for ſecuring the payment of that ſum, in due proportion to the other Grand-children, he offered to the Court two ſureties, who were approved of, and directed to
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give bonds in the office of the Clerk of the Court, unto the other grand-children, for their reſpective ſhares ; but no ʃuch bonds or ʃecurity have yet been given.
On theſe proceedings an appeal is brought before this Court; and, upon the argument, the counſel have done great juſtice to their reſpective clients. It was our wiſh, however, that the opinions and practice of the ſeveral Orphan's Courts of Pennʃylvania, had been aſcertained in caſes of this deſcription; and that we might be informed, whether any caſe, upon ſimilar principles, had been ever determined in the Supreme Court; for we ſhould be exceedingly cautious in pronouncing a judgment that might ſhake eſtates held in this way. As we have not yet obtained full ſatisfaction on this head, we would ſtill wiſh to defer giving our opinion; but that we think it proper, from the length of time the cauſe has been under adviſement, to proceed upon the lights we have received.
On the part of the Appellant, ſix exceptions have been taken to the proceedings in the Orphan's Court.
1. That it is no where mentioned, who are the Repreſentatives of Elizabeth Willis, the inteſtate; nor into how many parts the eſtate ſhould be divided; but the whole is left to the Sheriff.
2.That the Court have adjudged the eſtate to a Grandʃon; whereas they had no authority to go beyond the firſt degree in the deſcending line.
3. That even if the Acts of Aſſembly did impower the Court to go farther, to wit, to the grand-children, yet that the adjudication ought to have been to all the children of the eldeſt ſon, and not to his eldeſt ſon excluſively.
4. That no proviſion is made for the Appellant, Samuel Walton, who is tenant by the curteſy of his wife's ſhare, to wit, of a third part, in three parts to be divided.
5. That the judgment is uncertain with reſpect to the valuation money ; in-as-much the amount of each ſhare is not particularized, not the time of payment limited.
6. That the partition ought to have been made by one inqueſt, if practicable; but, if not practicable, and ſo returned, the valuation ought to have been made by another inqueſt; and that, on the whole no eſtate can be veſted in Thomas Willis by his acceptance at the valuation, as no ſecurity has yet been given for the money.
The weight of theſe exceptions depends upon the due conſtruction of the Act of Aſſembly, entitled, “ An Act for the better ſettling of the inteſtates eſtates,” the ſupplement to that Act, and the practice under both of them.
1. With refpect to the firʃt exception; we think it would be well for the party praying for a partition of an inteſtate's real eſtate, to be particular in the names of the perſons entitled to ſhares, and of the purparty of each; and in this reſpect to purſue the form of a declaration in partition, and of the return of a writ de partitione facienda. But to reverſe an inqueſt for this omiſſion, would certainly affect
many eftates, as thefe proceedings in the Orphan's Courts, are frequently drawn by perfons not much fkilled in ftrict forms ; and, in the prefent cafe, as the return of the Sheriff has been, that the eftate could not be divided without prejudice to or fpoiling the whole, no wrong or damage feems to have been to any one. For thefe reafons we muft over-rule this objection.
2. The ʃecond exception introduces a queftion, whether a Grand-ʃon, that is, the eldeft fon of the eldeft son of an inteftate, is entitled to an eftate, which cannot be divided, at the valuation, in the fame manner as his Father? and this muft be decided by the words, purview , and intent of the Legiflature, in the two Acts of Affembly which have been already cited. The main intent of thefe acts, appears to have been, that real eftates fhould be divided among the children, or reprefentatives in the defcending line, of an inteftate ; and not defcend to the heir at the common law. But a ʃecondary, and the next intent, feems to have been, to prevent eftates from being fplit and frittered into many parts, to their manifeft prejudice ; and, accordingly, it is provided, that where that would happen, the eldeft fon or heir at law, fhould have his election of taking the land at a valuation, to be made in the manner prefcribed in the Acts.
The reaʃon of a law will have great influence in determining its extent; and on the prefent occafion, the reafon alluded to, is much ftronger in the cafe of a Grandʃon than of a ʃon; for, in this cafe, the diftributive fhares will probably be moft numerous, and confequently, moft injurious of the land by a divifon or partition. The words “ heir at law,” in both Acts, are, in ftrict grammatical conftruction, an expreffion, or fubftitute for eldeʃt ʃon; but the reafon of the law, and the ufage ever fince the paffing thofe Acts of Affembly (as we have been informed) with warrant a more extenfive and beneficial interpretation of them. We think, therefore, that this objection likewife fails, as well as
3. The third objection, which we over rule ; Thomas being alone the heir at common law.
4. But the ƒourth exception appears to the Court to be ƒatal. There ought to have been a provifion made for Samuel Walton, who had an eftate for life by the curtefy , and yet he is not even named in the ʃentence or decree of the Court below. When a writ de partitione ƒacienda is iffued, the Sheriff is obliged to ʃummon all the parties to attended; and, if they do attend, he muft make the partition in their preʃence. The fame thing is not, indeed, expreʃsly required in the partition, or valuation, to be made under the Acts of Affembly ; yet natural juftice, and the conftant rules of all Courts require, that every perfon, who is interefted in the proceedings, fhould be ʃummoned and heard. 3 Mod. 378. It may not, perhaps, be the practice, nor is it neceffary in this cafe, that it fhould be ʃet out in the return by the Inqueft, though we would wifh that to be done ; but is effential to juftice that all parties fhould in ƒact have notice. On the proceedings before the Orphan's Court, the Appellant has not been made even a party in the decree ; and the prefumption of courfe is, that he was
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neither ʃummoned nor preʃent. If he had been prefent, he might poffibly have urged fuch arguments, as would have induced the inqueft to have put a higher eftimate, or value, upon the premiffes, and an opportunity ought to have been given to him for that purpofe.
5. As to the ƒiƒth exception ; there does not appear to be fufficient certainty in the fentence of the Court ; inafmuch as the purparts of the valuation money are not fpecified, not the time of payment fixed. But this Court might reduced both thefe points to certainty, were there no other exceptions ; and, in the cafe, the whole cofts of the appeal would fall upon the Refpondent.
6. On the ƒixth exception, we muft obferve, that the practice in the Orphans Courts has been to direct the fame inqueft, which is appointed to make a partition of real eftate, if that cannot be done without prejudicing the whole, then to make the valuation. This Court, therefore, will not now undertake to alter this ling eftablifhed practice, though it is liable to fome exceptions. But we are of opinion, that the fee in the premifes cannot yet be vefted in Thomas Willis, as he neither paid, nor fecured the payment of the valuation money to thofe who are entitled to receive it.
Upon the whole, let the fentence and decree of the Orphans Court be reverfed.