
    Young and wife against Bickel.
    THIS was an appeal from a decree of the Orphan’s Court of Dauphin county.
    
      Henry Bickel died intestate and without issue, seised of real estate in fee simple, leaving a widow, Sarah, now the wife of John Young, a father, John Bickel, one brother, and one sister. John Young petitioned the Orphan’s Court of Dauphin county for a partition.of the real estate of Henry Bickel, between himself, in right of his wife, and the representatives of the said Henry Bickel. In pursuance of an order of the Orphan’s Court, an inquisition was held, and the real estate divided into two parts, (said to be equal), one of which was assigned to the said John Young, in right of his wife, and the other to John Bickel, the father. This partition was confirmed by a decree of the Orphan’s Court, from which an .appeal was made to this court. .
    By the depositions accompanying the record, it appeared, that the value of the property assigned to the widow, was about 1600/.: and the value of that assigned to the father was 450/. or 500/.: but the rents they yielded were each about 80 dollars. It also appeared that several of the jurors that held the inquisition, were connected by affinity to Young.
    
    
      Godwin and Duncan, for the appellant,
    took the following exceptions to the decree.
    1. This partition is manifestly unequal. The value of the property assigned to the widow is thrice the value of the father’s share. This is confessed in the opinion of the court below, but they considered the partition as equal, because the annual income is nearly so. But in case of the death of the father, before the widow, his share devolves upon the brother and sister of the intestate, .who would be greatly injured by the present partition, if it should be established. Inequality of partition is good cause for setting aside the inquisition. 16 Vin. Ab. 229, O. pl. 2. Chancery will set aside a partition made by commissioners of its own'appointment, if it is unequal. Ib. 241, Q. pl. 2. The value of the fee simple is the thing to be considered: not the rent. Great injustice has ~been done in conducting these proceedings.
    
      An intestate left a widow, a father, a brother and .sister, and no children. On partition of his real estate by-authority of .the Orphan’s Court, the share assigned to the widow was thrice the value of that assigned to the father: but the rents were nearly equal. Thq_ partition wa3 set aside on account of its inequality.
    Qwei^,Whether the Orphan’s Court has power to make partition, where the intestate leaves a widow, a father, a brother and sister, and no children ?
    If it has, such partition would be binding on the reversionary interest of the , brother and sister.
    It is not right that persons connected by affinity to either party, should be placed on an inquest**.
    
      2. Several of the jurors were related to the appellee. We had not the right of challenge: and it is only in a subsequent stage, that this objection can be taken advantage of.
    3. No partition is authorised bylaw in a case like the present. The system of the acts of assembly, now in force on the subject, appears to be that there shall be no partition by inquisition, unless under circumstances in which the estate may be valued, if it- will not conveniently divide. But if this were a case for partition, the other representatives should have been parties, because they will be affected by it, if the father dies before the widow. The act of 19th April, 1794, is confined to cases where there were children, or their issue. If there was a widow and no children, she held one-half. By subsequent laws, provision is made for partition among persons, not children, in the same manner as if there were children. Then came the act of 7th April, 1807, giving the widow the interest of one-third or one-half the valuation of the whole estate in lieu of the land. It is under this that the proceedings should have been conducted in this case.
    4. The inquest was ordered to take a surveyor, and ascertain the exact quantity. This has not been done with respect to the father’s part. The inquisition says the quantity of a lot assigned to the father is about so much, while that assigned to the widow is ascertained exactly.
    
      Fisher and Norris for the appellee.
    1. The partition is equal, because the income is so, or nearly so ; and that was sufficient between tenants for life. The reversion of the brother and sister cannot be affected by it. On the death of either of the tenants for life the partition is at an end: and then a new one may be made between the surviving tenant for life and those in reversion in fee.
    2. There was no blood relationship between any of the jurors and Young: nor was any objection made at the time.
    5. This case is within the words as well as meaning of the acts of 1794, and 1797, which extend to other cases besides those where there are children. The act of 1807 does not, by implication, take away a positive right conferred by former statutes. One object of this law, and perhaps the main one, was to make the annuity which each child should pay to the widow, a charge on the separate portion of each child, which was not the case before: but the widow’s whole annuity remained a charge on the whole.
    4. There was no occasion to employ a surveyor and ascertain the exact quantity in case of town lots, such as the property here was. The rule of court applied only to tracts of land, in which the estimated quantity was frequently wrong.
    
      Reply. The judgment is, that the partition remain firm and stable forever. If therefore it is established, it must bind the reversioners. There cannot be two inquisitions on one estate. By the statute 32 Hen. VIII. c. 32, making provision for partition between joint-tenants, and tenants in common, for life or years, it is expressly provided, that it should not affect the reversioner or remainder man. No such provision, however, is contained in our acts of assembly.
   Tilghman C. J.

Several reasons have been assigned for the reversal of this decree, but there are two which have been principally relied on. One, that the partition was manifestly unequal; the other, that the court had no authority to order a partition. In support of the first objection, there is strong evidence. The property assigned to Toung and wife, is of three times the value of that assigned to John Bickel. This is admitted by the Orphan’s Court. But as the two parts produce at this time nearly an equal rent, the value of the fee simple is supposed to be an immaterial circumstance, it being taken for granted, that the brother and sister of the intestate, who are entitled to the reversion in fee, can be no way affected by this partition. If they are affected, the injustice would be so great, that it is not pretended the partition can be supported. Supposing then, that our acts of assembly authorised the Orphan’s Court to order this partition, it must be governed altogether by those acts, and I can find no provision in any of them, by which the portion of land assigned to a widow, can be taken from her during her life. The English statute of 32 Hen. VIII, which gives a writ of partition between joint-tenants, and tenants in common, for years or for life, expressly provides, that it shall not affect the interest of reversioners or remainder men. But that statute has no effect on these proceedings. Now it being conceded, that Taung’s part is thrice as valuable as the remaintng part, it follows, that if Mrs. Young survives John Bickel, the reversioners will be greatly injured,, because instead of coming into possession of one half of the estate of their brother Henry Bickel, according to their right, they will not have more than a fourth part. The partition therefore ought not to stand. Before I leave this subject, I will mention another circumstance not unworthy of notice. Four or five of the jury, although not blood relations, were connected with John Young, by various kinds of affinity. I know nothing of them, and therefore presume, that they were all honest men and of good character. But it is not right that connexions of this kind should be placed on juries ; and I hope, that in future it will be avoided. With respect to the power of the Orphan’s Court, I do not wish to say any thing very decided. The acts of assembly respecting intestates, contain expi’essions of large import, in favour of partition. And I suppose, there was a general intention of-authorising a partition, in all cases where real estate descended to several persons. Yet I foresee difficulties in the present case, where the whole estate goes in the first instance to tenants for life. It were therefore to be wished, that these parties could effect a partition amicably, between themselves, or that before another partition is made, under the authority of the court, the subject should be brought before the legislature, who might make some provision for the safe-, ty of the reversioner j for I am satisfied, that this exact case did not occur to those who drew the several intestate laws, or they would have made particular provision for it. My opinion, on the whole is, that the decree of the Orphan’s Court should be reversed.

Yeates J.

The plain words of the 22d section of the act of 19th April, 1794, authorise the widow or relict of an intestate, to apply to the Orphan’s Court, for partition of his lands, according to the purport and true meaning of that act; it, of course, includes the case of the intestate dying without, issue, which is provided for by that law. The 6th section of the act of 7th April, 1807, was not intended to deprive her of this right, but was designed to supply an omission in the 22d section of the former act. No reason of policy can be assigned, why, in the case of lineal descendants, the widow should be entitled to lands, and, in that of collateral heirs, she should be confined to the interest of the valuation of one moiety of the lands of the husband.

It is justly complained of, that the partition here is grossly unequal. Such a case, plainly shown, would be relieved at law. Dyer, 73, pl. 7, in margin. So also in equity; Toth. 220, 221. 1 Fonbl. 15, &c. The testimony, which has come up with the record, proves this inequality, and it is admitted fully by the opinion expressed in the Orphan’s Court; but it is asserted therein, that the brothers and sisters cannot possibly be affected thereby; but to this I am compelled to withhold my assent. If the effects of this partition are confined solely to the father and mother, I should not feel disposed to interpose. But the words of the petition require a partition to be made to, and among the petitioners, and the representatives of the intestate. An order to that effect is made by the Orphan’s Court, which is pursued by the inquisition returned by the sheriff. Those representatives were, in fact, before the court: if the widow’s dower had been appraised too high, they would have been obliged to pay a yearly interest, beyond a fair valuation of one moiety of the lands and, where a partition has been made, as in the present instance, and the widow had survived the father, those representatives would not have succeeded to the possession of one equal half part of the lands, according to quantity and quality. This would have been manifestly unjust. To obviate this difficulty, it has been contended, that new proceedings might be had in the Orphan’s Court, on the death of the father; the brothers and sister not being bound thereby. But I perceive no clause in the act of 19th April, 1794, or any subsequent law, which would warrant such a procedure. The expressions in the 22d section are, that the partition made by the inquisition, shall be declared by the judgment of the Orphan’s Court, to remain firm and stable forever. The lands assigned to the widow by a court of competent jurisdiction, cannot be taken from her by any branch of the family, while that judgment remains in force.

Upon the ground of inequality of partition, I am of opinion, that the decree of the Orphan’s Court be reversed, and the record be remitted to them for further proceedings.

Brackenridge J. concurred.

Decree reversed.  