
    [Lancaster,
    May 29, 1827.]
    KEAN against RIDGWAY and another.
    IN ERROR.
    The Orphans’ Court decreed land of an intestate taken at the valuation, to J. K, in right of his wife (who was one of the heirs) to hold to the said J. K. and his wife, and the heirs of his wife. The wife takes only her undivided share in the land, as she inherited from the intestate.
    The husband’s recognizance in such case does not bind the wife’s estate.
    If the wife’s interest in other portions of the land so decreed and taken, has. been divested by decree of the Orphans’ Court, or her conveyance, she cannot come upon the remaining land in the hands of a bona Jide purchaser for more than her original undivided interest.
    Writ of error to Dauphin county, in an ejectment for one hundred and sixty-three acres of land, brought by Jane Kean, who survived her husband, John Kean, the said Jane being one of the daughters and legal representatives of John Hamilton, deceased, who died intestate, against Jacob Ridgioay and Nicholas Bressler.
    
    The jury empannelled in the court below for the trial of the cause, returned a special verdict, of which the following is the substance:—
    
      John Hamilton died intestate, prior to the passage of the intestate act of 1794, (at which period, the oldest son of an intestate took two shares of his estate,) leaving a widow and six children; namely, Jane, intermarried with John Kean, Martha, intermarried with James JLlricks, John, Hugh, Margaret, and Catharine. On the 7th of October, 1801, four persons appointed by the Orphans’ Court, made a report that they had valued the several parcels of the real estate of the deceased, situate in Dauphin county, and the court, therefore, decreed two several parts thereof to John and Hugh, two of the children of the intestate. The guardians of the other children relinquished the right to take the residue of the real estate in Dauphin county, at the appraisement, to John Kean and Jane, his wife, who was the eldest daughter of the intestate.
    On the 27th of October, 1801, John Kean petitioned the Orphans’ Court, that he might be permitted “ to take the residue of the real estate not taken by the other heirs, situate in Dauphin county, in right of his wife, at the valuation.” The court decreed “That the said John Kean, in right of his wife, do, on paying or securing to be paid, the several and respective shares of the widow and other children of the said deceased, of and in the valuation or appraisement of the plantation, including, &.C., to hold the same to him the said John Kean and Jane, his wife, and the heirs of the said Jane as fully and truly as the said John Hamilton had and held the same in his lifetime.” John Kean entered into a recognizance with three sureties approved by the court, conditioned for the payment of their respective shares of the valuation money to the widow and children of the intestate.
    To May term, 1812, an action of debt was instituted on this recognizance in the name of the President of the Orphans’ Court of Dauphin county, at the instance of Moses M'Lean and his wife, in which judgment was tendered against the defendants on the 7th of September, 1812. A fieri facias issued returnable to November term, 1S12, and was levied on the land in dispute, which was condemned. A venditioni exponas issued to February term, 1S13, and the sheriff having returned that the land remained unsold, an alias venditioni exponas issued to May term, 1813, on which the premises were sold to George Wienman, for nine thousand six hundred and forty-three dollars and thirty-one cents. On the 17th of May, 1813, the sheriff acknowledged a deed for the premises to the purchaser.
    
      George Wienman and wife, by deed dated October the 9th, 1813, conveyed the premises to John Newbold, to whom John Hamilton, Hugh Hamilton, Moses M'Lean, and Catherine Hamilton, executed releases. Newbold and wife, by deed dated the 21st of January, 1818, conveyed to Henry Shriver, who with his wife, by deed bearing date the 9th of February, 1818, conveyed to Jacob Ridgway, one of the defendants. James Alricks and Martha his wife released their interest in the premises to John Kean, on the 22d of November, 1806, and on the 14th of January, IS06, John Hamilton, Hugh Hamilton, and Robert Harris, guardians of Margaret Hamilton, and Catherine Hamilton, released their interest to John Kean, in one hundred and twenty acres and one hundred and twenty-nine perches, part of the premises, and on the same day they released to George Fisher, esq., one hundred and twenty acres and one hundred and twenty-nine perches, part of the lands of the intestate.
    At May term, 1813, a feigned issue was joined, in which John Hamilton, Hugh Hamilton, James Alricks, and Martha, his wife, Moses M'Lean, and Margaret, his wife, and Catherine Hamilton, were plaintiffs, and John Kelker,esq., sheriff of Dauphin county, defendant, with notice, &c. The object of this issue was to ascertain to how much, if any of the money in the sheriff’s hands, arising from the sale of the real estate of John Kean, under the venditioni exponas, above referred to, the plaintiffs were entitled. On the 7th of December, 1813, the jury found a verdict for the plaintiffs; on which auditors were appointed, who made a report, exhibiting a general statement of the respective claims of the plaintiffs in the issue, to the money in the hands of the sheriff, and an apportionment of the sums due to eaeh of the heirs of John Hamilton, deceased, from John Kean, was made of the property taken by him under the decree of the Orphans’ Court. The statement exhibited also, the payments made by John Kean, to the heirs of John Hamilton, who, on receiving the balance due to them respectively, were to release their interests in the property sold by the sheriff. These balances were received, and releases executed accordingly.
    
      John Kean on the 12th of February, 1810, mortgaged the premises for eight thousand dollars to the Philadelphia Bank, whose assignee received from the sheriff the sum of four thousand nine hundred and ninety dollars and sixty-seven cents, a portion of the proceeds of the sale.
    Besides the premises in dispute, John Hamilton left other real estate in Dauphin county, and in Cumberland and Mifflin counties, parcels of which were taken under at their appraised value, by the different heirs, under decree of the Orphan’s Court of the different counties.
    
      John Kean died in the month of December, 1818.
    Upon the facts set forth in this special verdict, the court below delivered an elaborate opinion, the substance of which, briefly stated, was, that the estate which descended to Jane Kean from her father, was not divested by the proceedings and decree of the Orphans’ Court, so far as related to those parts of it, which were taken by her husband at the valuation; and that the sale under the judgment on the recognizance, did not vest in the sheriff’s vendee her interest in the premises for which this ejectment was brought.
    That the decrees of the several Orphans’ Courts, the acceptance by some of the heirs of specific parcels of the property, giving security for the payment of the shares of the other heirs, and releases as to those parcels not taken by them, were equivalent to a judgment in partition, and a severance of the tenancy in common, and that consequently such parts, of the intestate’s estate as were thus taken were held by those who took them in severalty. That the interest of Jane in the parcels taken by the other children was divested; and their interest in those which she took through the medium of her husband, also divested. That each heir had a specific portion of the estate, those who did not take land, having taken money. That the interest of Jane originally diffused through the whole of the intestate’s estate, was by the proceedings in the Orphans’ Court, concentrated in those portions of it, which were taken by the husband in her right, in which her interest was enlarged by annexing .to and engrafting upon it, her interest in those portions which were taken by the other children: That her interest, equal to one-seventh part of all her father’s estate, thus falling exclusively upon the several parcels taken by her husband in right of his wife, the premises in dispute, were to bear their proportion, which, by an arithmetical calculation not necessary now to be gone through, appeared to be fifty-eight acres; for which the court gave judgment upon the verdict. ■
    To this opinion the counsel for the plaintiff excepted.
    
      
      Elder, for the plaintiff in error, contended,
    that instead of a judgment for fifty-eight acres, the court below ought to have rendered judgment for the whole of the land in controversy. By the decree of the Orphans’ Court, giving the estate taken by John Kean in right of his wife, “ to John Kean and Jane his wife, and the heirs of the said Jane” the fee is limited to the wife. The Orphans’ Court, which proceeds as a Court of Chancery, had a right to make such a decree. It is empowered to order the estate to any daughter, she, or some one for her, paying, &c. The words of the act, “ limit and appoint,” have relation to the nature of the estate to be decreed and not to the time of payment, Act of 1713, Purd. Dig. 610. Act of the 23d of March, 1764. 3 Sm. Laws, 159. 2 Binn. 299. The Orphans’ Court cannot take away the rights of the wife, which can only be divested by a deed acknowledged by her after a separate examination. 1 Serg. & Rawle, 460. 6 Serg. & Rawle, 267. 8 Serg. & Rawle, 167. The assent of the husband to these proceedings is to be inferred from his having petitioned for them in right of his wife. The decree is consistent with the rights of the parties, and if the Orphans’ Court has chancery powers, there can be no doubt of its validity. 7 Johns. Ch. R. 113. 5 Johns. 464.
    
      Fisher, for the defendants in error,
    when about to answer the argument of his opponent, was stopped by the court; but under an agreement of parties was permitted to assign errors in the' judgment.
    He contended that the recognizance bound the whole of the land taken by John Kean at the appraisement, as well his wife’s share as the shares of the other children, to secure payment to whom the recognizance was given. Consequently, a complete title to the whole vested in the purchaser at sheriff’s sale, and the plaintiff could recover nothing.
    If, however, she is entitled to any thing, her title does not extend beyond one-seventh, which was her original undivided interest in every part of the estate. This interest has been regularly extinguished in those parts of the estate taken by the other children, and cannot be transferred to and kept alive in those which her husband took. He cited, 11 Serg. & Rawle, 327. Walton v. Willis, 1 Dall. 265. Beatty v. Smith, 4 Yeates, 103. Taggart v. Cooper, 1 Serg. & Rawle, 504. Kean v. Franklin, 5 Serg. & Rawle, 155. Gause v. Wiley, 4 Serg. & Rawle, 509. 7 Serg. & Rawle, 1.
   The opinion of the court was delivered by

Gibson, C. J.

The legislature had in .view a partition among those who claim by descent from the intestate, unembarrassed by the intervening of a husband, which was not foreseen and therefore not provided for. When it occurred in practice, it gave rise to many difeulties and different opinions which prevailed in different pai’ts of the state. In some, it was thought that as the husband might have elected to take his wife’s share in money, and as he paid for the other shares with his own funds, justice required that he should be permitted to take the whole to his own use. In others, it was thought that as he had nothing in the inheritance but his marital rights over his wife’s share of it, he came in only as her representative, to perform for her an act which she was incapacitated hy the coverture to perform for herself, that the quantity of her interest and not her title, was altered by the decree; and consequently, that the recognizance to the other children was a lien on the whole, which might be sold as an indivisible mass; so that on all hands it was agreed that the turning of the wife’s inheritance into personalty, was an evil incident to the husband’s right of election, which it was impossible to prevent, and which the court would be compelled to disregard. Thus it was the practice to decree the whole to the husband, or to the wife, as the one or the other of these opinions happened to prevail. But when this court decided that the shares of the other children become the estate of the husband, as in the case of an ordinary purchase, and that the wife has an interest paramount the partition, which remains in her as her old estate, it cut the knot if it did not untie it. Whether the point decided will have the intended effect of preventing the wife’s inheritance from passing to those who are not of her blood is by no means clear; but under all circumstances, perhaps nothing better could have been done. But the separating of the respective interests of the husband and wife removed all difficulty in regard to subordinate questions. As the Orphans’ Court has not power over the rights of the parties, their estates are not to be moulded to the form of the decree; the legal estate, when confirmed to the husband or to the wife, being held by either in trust for the other, according to their respective interests. In the case before us, there is nothing in the record to show that the estate was decreed to the wife,- with the assent of the husband; on the contrary it is evident that it owes its form to a misconception of the rights of the parties. Had' the husband intended to vest the title to the whole in the wife, he would have executed a conveyance, without which his intention would rest on conjecture, which is of little account in fixing the rights of a party.

Then, as to the error assigned by the defendant. It is too plain for argument, that the recognizance of the husband does not bind the estate of his wife. He stands in a relation altogether different from that of a guardian, who elects to take at the valuation in behalf of his ward, and who for that reason, subjects the ward to his contract for payment of the purchase money. As concerns the share of his wife, who remains seised of her old estate, he takes nothing in her behalf or his own. Her right of election is an accident of her person and not of her estate, and he succeeds to it by the marriage as he does to all her other rights that are purely personal, but what he takes in virtue of it, he takes to his own use, and it would therefore be contrary to the dictates of natural justice to permit him to pledge her estate for the price of what he has purchased for his own benefit. He could no more do so by a purchase of the shares of the other children and giving a recognizance in the Orphans’ Court, than by the purchase of any other real estate, and giving security for the purchase money by mortgage or judgment.

Then if the title and estate of the wife are unaltered, the proportion to which the plaintiff is entitled here is easily determined. Claiming paramount the partition, she is entitled to what she inherited, — an undivided seventh of the lot in question. The children succeeded to the inheritance as tenants in common of the whole, the' estate of each being an undivided interest in every part and particle of it. By what process then has the plaintiff’s interest which originally pervaded the whole, been concentrated in a part? As regards the land in dispute, her estate is what it was at the death of her father; and as regards the other portions, it has been divested by the decree of the Orphans’ Court, or by her conveyance, and it would be obviously unjust to have her interest in those portions that were turned into personalty by her own act or the act of the law, fastened upon this part of the inheritance in the hands of a bona fide purchaser. She is therefore to recover but an undivided seventh of the land in dispute.

Judgment reversed, and judgment for the plaintiff for an sundivided seventh part of the lands described in the writ.  