
    Stoolfoos and others against Jenkins and wife.
    In Error.
    THE opinion of the Court below, filed at the request of the plaintiffs in error, was returned with the record of this cause, on a writ of error to the Common Pleas of Lancaster county, in which the action was an ejectment for 303 acres of land in. Leacock township, which the. defendants in error, the plaintiffs below, -claimed under the following circumstances :
    
      toe daughter of an intestate, petitions the Or^hans’ Court, in right of his wife, for a partition or appraisement of the real estate of the intestate, and agrees to take it at the appraised value, the Court have no right to award the whole estate to the husband1 in fee, upon his paying, or securing to he paid, the shares of the other children. With respect to the shares of the other children, for which he has paid, the title is in him ; but with re** spect to his wife’s share, he has no greater interest, than in any other part of her real estate.
    
      
      Patrick Carrigan died seised of the land in dispute, intestate, leaving three children: viz. Catherine,. Jane, and Patrick. Catherine intermarried with James Hamilton. Jane intermarried with Jonathan Coates, by whom she had three children, who survived their parents. Patrick died intestate, some time'before March, 1787, never having been married. Catherine Jenkins, one of the plaintiffs, was otie of the children of James Hamilton and Catherine, his wife,- the latter of whom never made.any disposition of her estate.
    On the 7th of March, 1787, James Hamilton, m right of his wife, petitioned the Orphans’ Court of Lancaster county for an inquest to divide or appraise the real estate of Patrick Carrigan. An inquisition was returned, finding that this tract could not be divided to and amongst the children, without injury to or spoiling the whole, and valued it at 2340 pounds 10 shillings. On the 27th of the same month, the Orphans’ Court confirmed the inquisition, and “ On motion, in behalf of James Hamilton, intermarried with Catherine, the eldest daughter of the intestate, setting forth that he was willing and desirous to take the premises at the valuation, it it was ordered by the Court, that the said James Hamilton do, on paying or securing to be paid, the' several respective shares of the other children within one year, hold and enjoy the said premises in fee, agreeably to the Acts of Assembly in su. h case made and provided; and the Court direct the distribution of the valuation as follows: to James Hamilton and Catherine his wife, 1170 pounds 5 shillings j to the three children of Jane, 1170 pounds 5 shillings.”
    
      James Hamilton entered, into the usual recognisance with two sureties.
    The defendants were purchasers, both mediate and immediate, from James Hamilton, whose wife never joined in the conveyances, and died intestate.
    
      
      John Hubley, esq., who had been four years in the office of Edzvard Shipp en, esq. the Clerk of the Orphans’ Court of Lancaster county, prior to the revolution, when Mr. Hubley was himself appointed to that office, and filled it until the year 1800, and who practised in the Orphans’ Court both before and after his appointment, and was familiarly acquainted with the proceedings of that Court d ¡ring the whole of those periods, certified, “ that it was the common usage for'husbands to petition the Orphans’ Court, in right of their wives, for the partition or appraisement of their-wives’ estate, and to ask for, and obtain, confirmation of them in fee to the husband, upon giving security for paying to the other children,, their shares of .the valuation money.’’ .
    After the evidence was closed, the following points were submitted, by the counsel lor the plaintiffs,, to the Court, for their decision. -
    
      First, That by the proceedings in the Orphans’ Court, the fee simple in the premises, vested in Catherine, the wife of •James Hamilton, subject to' the life estate of the said James Hamilton, as tenant by the curtesey. ■
    Second, That the proceedings in the Orphans’ Court, were erroneous and void:
    1st. Because the wife was no party to the proceedings.
    2d. Because the husband.had no right to petition for the appraisement of his wife’s real property.
    3d. Because the proceeding of the husband and wife, should have been by writ of partition. ,
    After stating the facts, and the points submitted for their opinion, the.Court of Common Pleas (Franklin, President) instructed the jury to the following effect:
    “ With -the sentiments we entertain on this case, we do not think it necessary to express any opinion upon, the validity of these objections. It does -not appear to us, that the Orphans’ Court had any authority to adjudge this property to James Hamilton, so as to vest the fee in him. The law says, that where the property cannot be divided, 'the sons in succession, may take the estate át the valuation. If there be no sons, or if they shall have all refused to take the estate at the valuation, then the daughters have the same right giv.en to them, in succession, from the oldest to the youngest. If the children be minors, their assent or dissent may be declared by their guardians. ■ If the daughters be married, their assent or dissent may be declared by their husbands ; but if .the estate be accepted, it* must be adjudged to the wife, subject to the right which the law vests 'in the husband. ' ; ' • V. -
    “ If this opinion be correct, there was nothing to . divest the estate which descended to Catherine, the wife of James ■Hamilton.' The-fee simple was in her. He had no right to convey the estate ; and she and her husband being dead, her title became vested in her children. The wife of the plain* tiff is one of those children, and she claims her .share of the estate in this action.” _ ■
    The verdict was for the plaintiffs, and the defendants removed the cause by writ of error. / .
    Hopkins, for-the. plaintiffs in error'.
    The- question on which, this 'case depends, is of immense importance ; for its decision will affect the stability of a great ■number of titles. The practice Of the Orphans’Court,.from the earliest periods, has been, where the estate of the wife was taken at the appraisement, to assign it to -the husband, upon-his paying, or- securing to be paid., the other shares in money.
    
    Out of the general question two points arise: l.Ts the husband to be considered as a child, under the intestate laws ? ■2. If so, does he take the whole, as well his wife’s.share, as that of the others, as a purchaser ?
    • Í. The Legislature must have’designfed to place the husbands of married daughters,* upon the footing of children j for they could not have-forgotten that the law must be applied to many cases of inarried women,1 who were incapable themselves of making an election, and whose husbands must necessarily exercise that' right in their place. The privilege of the husband, to take in right of his wife, is adverted to by Judge Yeates in Messinger v. Kintner, 4 Binn. 106.
    
      2. Where a child takes the whole at the appraisement, he takes the whole as a purchaser, and no pdrt by descent. By the proceedings in the Orphans’ Court, the estate of the wife is converted from realty into personalty. So it was decided with respect to those shares.for which bonds are given by the child or children who take the estate at the appraised value; and there is no reasouwhy all the shares should not be regarded in the same light. Yohe v. Barnet, 1 Binn. 358. Even the lien of a judgment, against one of the children, ceases on a decrée of the Orphans’ Court, awarding the estate to another child, and the lien is transferred from the .land to the money. Diermond’s Lessee v. Robinson, 2 Yeates, 324. This transmutation of the wife’s estate, can only be effected by an inquest, finding that the estate is incapable of division. As soon as the finding of the inquest has been approved by the Court, the nature of the estate is altered. It becomes personal property, and the’individual who .takes the land at the appraisement, becomes a purchaser, under a judicial sale, made under the authority of a Court of competent jurisdiction, in which the price paid is the appraised value. It would be absurd to say, that a child takes his own share by descent, and the rest by purchase. The whole vests under the same title, and that title is derived through purchase. The same principle applies to the case of a husband, who pays for the shares of the other children-in money, and who is to be considered as having paid for his wife’s share of the land, her purpart of the appraised value.
    • The language of the decree altogether precludes the idea, that the husband took the estate in the character of trustee for his wife ; for it is given to him, to hold and enjoy in fee.
    
      Champneys and Rogers, for the defendants in error.
    
      Catherine Hamilton,. on the death of her father, was entitled to one-half of his estate, and nothing has taken place, by which- it has been divested. The proceedings in the Orphans’ Court were void, because the wife, who was principally interested, and who therefore ought to have petitioned, was no party- to the measure. The usage has been for the husband to petition, but it is always in her right, and of course,'oh her account, and she ought to have been joined with him. The Act of Assembly gives no right to the husband of'a married daughter. It confines it to children, to which character the husband has no title. - If the husband possesses the right to petition, it must be in the right, of his wife and for her benefit. The decree-in.this,case, however, gave the estate to the husband in fee, to hold and enjoy the same, agreeably to the Act of Assembly ; by which the wife’s interest was "entirely excluded. The idea that the wife’s'estate is converted into personalty, when the inquisition is confirmed by the Court, is erroneous. This result does not take place, until one of the children has accepted the land at the appraisement; and then as to. the others, and as to them alone, it becomes personalty. No authority is given in any part of the Act, to confirm any portion of the estate to the husband, who* if he takes at'all,: is to be regarded as the friénd of his- wife, páying the money for, her and taking for her be-, nefit. He takes the whole in her right. As t,o the shares of the other children, they are purchased by him for her use, and the interest is vested in her ; but as to her own share, there can be no colour for calling him a purchaser. Where the husband pays money for owelty, of partition, it gives him no interest in his wife’s land. Walton v. Willis, 1 Dall. 351. Diller v. Young, 2 Yeates, 261. 2 Madd. Ch. 101. 2 Fonb. Eq. 125. 1 Cruise, 483. Sugden, 453. Messinger v. Kinter, 4 Binn. 97. None of the adjudicated cases in Pennsylvania, militate against this position, and several strongly support it. Yohe v. Barnet was quite different. There the wife was to have the money, not the land. Diermond’s Lessee v. Robinson, only proves, that no one child can, by his act, prevent the proceedings in tile Orphans’ Court, and that, therefore, the lien of á judgment given by a child, is, after partition by the Orphans’ Court, discharged from the land and transferred- to the money. -But the principles laid down in the cases of Blocher v. Carmony, 1 Serg. & Rawle, 460, and Somerville v. Fogelsonger, decided at Chambersburg in October, 1820, go the whole length of deciding the present question, in favour of the defendants in error.
    
      
       Since reported in 6 Serg. & Rawle, 267.
      
    
   The opinion of the Court was delivered by

Duncan. J.

When so great a change was made in the course of descent, as was effected by the Act of 1705, and so novel a course of proceeding introduced by a tribunal unknown to the common law, it could scarcely be expected Trom human wisdom, to foresee and provide for all the consequences of this transition of real into personal estate. Each da> brings up new cases, unfolds new difficulties, discovers new defects; to remedy which, the Legislature are alone equal. For with all the laws, and supplements, made on this most important subject, the system continues miserably defective, more especially as it respects the rights of infants and Jemes covert. Hardships do occur; but Courtscannot usurp legislative functions, dr new model the law according to their own ideas of natural justice, dr redress hardships in each particular instance, or sanction the errors that have arisen in the exercise of new powers, conferred on a new tribunal. These forms of proceeding are not to be strictly scanned. Courts would overlook mere irregularities in the exercise of these powers; but the defects of authority and jurisdiction,' cannot be passed over. I would not, on these formal grounds, consider the proceedings as voidable, nor disturb decrees of confirmation, where the land is assigned to those whom the law designates ; but where there isrno authority to decree 'it to the person, such decree is void, and I do not know how any usag.e, if there be any such in a particular district, could be supported; for usage o.ught only to prevail when the construction is doubtful. That usage can never be a good one, which takes away the land of one, and gives it to another, without warrant of law. Usage' against a Statute, is an oppression of those concerned, and not an exposition of 'the lavr. Vaugh, 169, 383. 1 Dall. 178. This is not a mere matter of practice, but a question of right; and such usage cannot supersede positive law. A misconception by the Orphans’ Court of their powers, cannot be set up against the law itself; and this Court, whom the constitution of the jurisprudence of this country has invested with the powers of correcting the errors of the Orphans’ Court, cannot be referred to the practice 'of that very Court, to learn what the law is by which they are to proceed. An unbroken, general usage, where a construction is doubtful, and'much property depends on it, I would not disturb; but where the law'is quite clear and. will not admit of doubt, precedents, which have passed sub silentio, ought - not to prevail. In Somer« mile's case,'decided by this Court, the first case ever brought into judgment, the Court refused to sustain this practice.

Catherine Hamilton and Jane, her sister, were tenants in common. The plaintiffs below claimed under Catherine, as her heirs; and were entitled to recover, unless she divested herself of her right, by some solemn voluntary -disposition of her own, or her right has been transferred to, or vested in, her husband, by some judicial proceeding, some judgment of a. Court of competent jurisdiction. The argument of the plaintiff in error is, that James Hamilton, by virtue of the decree of the Orphans’ Court, took the whole estate of the intestate: and.to,him and his heirs was it awarded. Whilé the defendants in error contend, that he took the whole in right of.his wife, and in trust for her. If the proceedings were a mere nullity, and the Orphans’ Court exceeded their authority in awarding the land to the husband, the defendants in error would take a child’s part in the mother’s moiety ; but if the husband took the whole in trust for his wife, then they would be 'entitled to their purpart of the whole estate. By the letter of the Act,, the Court cannot award the estate to any other than a child of the intestate, or his heirs or alienee: The husband is not named. He has his marital rights, his interest as tenant by the curtesey, while it remains land. When it is converted into personal estate, by a confirmation to another, and a recognisance for his wife’s share, he. takes,' as he would any other chose in action of his wife. We cannot give away the estate of the wife, on a mere conjecture of legislative intention. And’ I think it was as far from their intention, as it is from their expression, to give to the husband the right to take the lands of his wife, inherited from her father, and make it descend to the husband, just as if ,it had been. the. estate of his, oWn father. This is so contrary to the policy of the common law, so inconsistent with its whole economy, with regard to a wife’s inheritance, that it never can arise by any implication, or from a sense of natural justice, or from the presumption that the father, had he made a will, would have devised, not to his own child and her heirs, but to the husband and his heirs. This is contrary to the natural propensities of man, whose desire is to perpetuate his estate in his own generation. The Legislature never had such latent intention. It is sufficient, however, to say, that they have not declared such intention. The husband’s interest in the wife’s land, is not the land itself. Even if he had issue by her, he has but a life estate, and that only, in strictness, where he reduces it into possession, during the coverture. The actual seisin of the husband during the coverture, is necessary to entitle him, as tenant by the curtesey, by the common law; though such actual seisin by the husband, ismot necessary by our law, if there be a potential seisin, or right of' seisin.. This has. been decided to be sufficient in this State. It is an. excrescence of the wife’s seisin. . He is seised in jure uxoris. If it be a -chattel of his wife’s, ít is his absolutely; if a chose in action and he reduces it'into possession, it is his: but if he does not, and she survives' him, it is hers. The mere, finding of the inquisition, that it is incapable of division, does not convert the land into money; for if the wife die between the inquisition and the final decree,' her interest would go as land; not to the next of kin, but to her heir. The recognisance would, be to him, and not to the husband. It would be a quasi tenancy by the curtesey interest, and not the personal estate of his wife. The husband would not have the right to elect, but the heir of the wife. This forces on the mind the conclusion, that the husband cannot take for himself: consequently that the Orphans’ Court have ho authority to decree it to him and his heirs. The Orphans’ Court have no power to decree it to him ; but as to the" interest of the other children,' where the husband takes in his own name, to him and his heirs, gives the requisite security," pays them their distributive shares, (for here payment after 30 years must be presumed) it is a very different inquiry. The heirs of the wife have the legal title to her own purpart untouched by the' decree, because as to her it is a nullity. Her interest remains as it did at her father’s death. But why should this null proceeding-vest in her the,.rights of others ? The legal right is either in the husband or the heirs of her sister. Why should she take the whole ? It was not bers by descent; it was not hers by purchase ; it was not awarded to her ; she did not pay for it. The very statement of the proposition, carries with it its own confutation. A man marries the daughte- of an intestate who has left nine other daughters. His estate is valued at 100.000 dollars. He takes it in his own name, to him and his heirs. He pays the other daughters their shares, 90,000 dollars. The wife .dies, never having had issue. ' Shall the nine sisters, after having just received from the husband 90.000 dollars, for, their interest in their father’s estate, rise up, on their sister’s death, and sweep away the whole estate, not only their sister’s part, but their own. Thiá is a most ex- ' travagant proposition.. But it is asked, what is to become of these shares ? I answer', the title, if not' in law, in equity, is in the husband. Having received the value, the heirs of fane would be estopped from gainsaying the right for which they had'been fully paid. No matter how irregular the proceedings in the Orphans’ Court are, no. matter whether voidable or not, as to themselves, they have rendered .them valid by ratification.' They are bound by the maxim of law, — • Qmnisratihabitioretrotrahitur et mandato equipar atar, by the acceptance of the- recognisance, acquiescence, and payment. Trustees are.- creatures of equity; Equity would act most inequitously to turn the husband into, a trustee, contrary to the truth of the facts. He cannot be converted into one, against truth and justice, by any legal intendment or fiction ; for in Jictione juris semper.subsistit e quitas. There is no actual trust; but the defendants in error.say, there is a resulting trust,- by act and operation of law. It is true, if a husband 'buys land and takes the deed in his wife’s name, it is pie-. sumed, prima facie, to be a gift to the wife. That is not a trust'for the wife ; it is the estate, the legal title. But it is a non sequitun, that where.he buys land with his own money, and takes the conveyance in his own name, he is a trustee for his wife; or that let him take the conveyance in his own name or his wife’s name, still he would be a trust.ee for his wife. • The husband might, if it so pleased him, and such has been the practice in some counties, take ,in. his own name, for himself and his wife, and the heirs of, his wife; and;such decree of confirmátión would be valid, because it gives him an estate as tenant by the curtesey, and secures the right of the wife and her heirs. It is-in substance taking in the right of his wife. This would -have been the course of reasoning, independent of usage. The supposed usage I have already given my opinion on. The Court would not be justified in indulging and sanctioning a practice in the Orphans’ Court contrary to law, the construction of which is plain and clear; nor ought they to put a doubtful construction on a Statute, where no doubt exists in their own minds, where no uncertainty results from generality of expression, and where nothing is left 'deficient in point of expression. But this is not res integra. It was settled in principle, in Blocher v. Carmony, administrator of Hess, 1 Serg. & Rawle, 460. There the proceeding was by petition to the Orphans’ Court. The husband paid nothing for equality of partition ¿ and it was held, that there was no more reason for his taking his wife’s estate in fee simple, than if he had obtained judgment in partition at common law; But the very question in specie was determined, at Chambersbyrg, by this Court, in, October, 1820, between David Fogelsonger and David Somerville others. I was not present either at the argument or decision. The Judges who decided the cause continue of the same opinion, in which I entirely coincide. The inconveniences of this decision cannot be so very great. If they were as great as the utmost exaggeration could make them, whatever influence they might have in the construction of a doubtful Statute, they can have none where there is no room for doubt. And what if they were to weigh here? The Court, in the construction of every Act of Assembly, would be called on to weigh in a balance, the inconvenience and convenience of every legislative provision, and decide on. their own notions of mete expediency. This would be an exercise of a most tremendous power; would be enacting laws, and not expounding them. But the inconveniences are by no means so manifest. The wife, with all the forms required by law in the disposition of her lands, is perhaps too much- within the power of the husband. The husband and the wife, being of full age, and she privately examined, may convey to a third person, previous to the confirmation. That person may take as the alienee, and re-convey to the husband ; or this may be done after confirmation to the wife, and thus all inconveniences be removed. This is better than removing the only barrier, weak indeed it is, .against a tyrannical exercise of the power of a husband, to make himself master of his wife’s estate. Instead of weakening it, I would, if possible, add to its strength. But the interest in the purpart of her sister’s children, Mrs. HamiU ton did not acquire. The Court made no discrimination faetween estate which she inherited from her father; and the estate of her sister’s children. And, from the generality of . . . , _ ■ , “ „ expression in the charge, of the Court, the jury naturally would conclude, that they were Instructed to find generally for the plaintiffs ; and so they have concluded, and found a general verdict for the plaintiffs.

The judgment must therefore be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  