Appeal of Heller

Citations

• 116 Pa. 534
• 8 A. 790
• 1887 Pa. LEXIS 421

Syllabus

<p>The three children of an intestate decedent amicably partitioned his lands among- themselves and by an agreement in writing, the widow not signing, provided that so long as the widow should make no claim for any dower out of said lands, they would each pay her annually a certain sum, etc., and that “whenever Catharine Shimer shall claim her dower at common law then these payments and privileges shall cease; but nothing herein contained and no receipt by her of any of the above-mentioned payments shall be any bar to her application for such dower, but such payments shall be claimed as a credit on the amount of dower which may be claimed.” The widow received payments and privileges under this agreement and died without having claimed dower. One of the heirs taking a portion of the lands made payments in part for a time and, becoming insolvent, his property was sold to different purchasers at sheriff’s sale. After the widow’s death, her administrator filed a bill in equity to recover dower out of a parcel of the real estate which had been thus sold. Held :</p> <p>1. That there was no implication that the widow by the receipt of payments under the agreement waived her right under the law, and that she was entitled to recover all_ arrears, subject to a credit as stated in the agreement.</p> <p>2. The declarations made by the widow to the defendant before he had purchased the land, that she wanted nothing and there would be no lawsuit, etc., were insufficient to create an estoppel.</p> <p>3. The plaintiff in the suit being an administrator, one who is an heir at law of the plaintiff’s decedent is not competent as a witness.</p> <p>4. That as the land was sold at sheriff’s sale subject to a mortgage which was prior to all other liens at the time thereof, and no dower in it had then been apportioned, the arrears of dower were not discharged by the sheriff’s sale.</p> <p>5. That the recovery is to be measured by one-third of the annual value of the rents, issues and profi