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BALKIEWICZ v. ASENAVAGE. (03/13/62)

THE SUPREME COURT OF PENNSYLVANIA


March 13, 1962

BALKIEWICZ, APPELLANT,
v.
ASENAVAGE.

Appeal, No. 67, Jan. T., 1962, from judgment of Court of Common Pleas of Schuylkill County, May T., 1961, No. 10, in case of Louise Balkiewicz v. Stella Asenavage, Anna Kravitz, Adam Balkiewicz, Jr. et al. Judgment affirmed.

COUNSEL

W. J. Krencewicz, for appellant.

Joseph A. Zane, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 406 Pa. Page 502]

OPINION BY MR. JUSTICE MUSMANNO

In July, 1944, Louise Balkiewicz, the plaintiff in this case, and Adam Balkiewicz, both having been married previously, their respective spouses being deceased, married one another and maintained the marital status until December 18, 1960, when Adam died. Each spouse had brought to the marriage a brood of children and, as occasionally happens in such a relationship, the union of the individual parents did not bring about a harmonious amalgamation of the two sets of offsprings. Thus, on January 20, 1956, Adam, without the joinder of his wife, conveyed to his eight children of the former wife all the property that he had acquired prior to his marriage with Louise.

Upon Adam's death, Louise filed an action in ejectment in the Court of Common Pleas of Schuylkill County against Adam's children (there are eight) to recover possession of an undivided one-third interest in the property he had conveyed to them.

One of the defendants filed preliminary objections in the form of a demurrer, which were sustained by the court, and the plaintiff appealed.

That Mrs. Balkiewicz owns an undivided one-third interest in the property thus conveyed without her joinder is unquestioned. The Intestate Act of 1947, P.L. 80, § 5 (20 P.S. § 1.5), provides: "The shares of the estate to which the widow is entitled shall be in lieu and full satisfaction of her dower at common law, so far as relates to real estate of which the husband dies seised; and her share in real estate aliened by the husband in his lifetime, without her joining in the conveyance,

[ 406 Pa. Page 503]

    marriage so that the widow could have no intestate rights in the conveyed property. The plaintiff concedes that the rule at common law, as stated in Pringle v. Gaw, supra, declared that a widow is not a tenant in common with the grantees of property conveyed by her husband without her joinder. The plaintiff argues, however, that this common law rule was changed when the legislature, in the enactment of the 1917 and 1947 Intestate Acts, codified the widow's interest in her husband's property of which he died seised and provided that such interest was to be in lieu and in full satisfaction of her common law dower and provided also that her interest in real estate aliened by him during his lifetime without her joinder would be the same as her interest in the real estate of which he died seised.

The plaintiff seeks to support this argument by quoting from Hanley v. Stewart, 155 Pa. Superior Ct. 535, as follows: "Since the Intestate Act of June 7, 1917, P.L. 429, the interest of a widow in the real estate of which her husband died the owner in fee, intestate, is not dower or a life estate. It is an absolute estate, of the same nature as that passing to his child or children, and is not conditioned on his being in actual possession of the real estate at the time of his death."

However, there is nothing in this quotation to oppose what we said in Smigell v. Brod, supra, and in Bridgeford v. Groh, 306 Pa. 566, as hereinafter quoted. The Superior Court's statement refers only to the widow's interest in land of which the decedent "died the owner in fee" and does not apply to the widow's interest in property aliened by her husband during her lifetime. There are fundamental differences between these two situations: "A widow's 'dower' rights may arise in two separate situations which are fundamentally different, both in law and in fact: (1) where the husband dies seized of the land; (2) where the husband has aliened the land during his lifetime, without his

[ 406 Pa. Page 505]

    wife joining in the conveyance." (Bridgeford v. Groh, 306 Pa. 566.)

We pointed out in the Bridgeford case that the word "estate" as used in section 3 of the 1917 Intestate Act (now incorporated in section 5 of the 1947 Intestate Act hereinbefore quoted) is "'a description having no application to property in which he (the decedent) divested himself of all estate prior to his death': Borland v. Nichols, 12 Pa. 38, 42 ..." Hence, decisions dealing with a widow's rights as to property of which her husband died seised do not necessarily govern here.

Furthermore, the changes noted in the quoted statement in the Hanley case had reference only to the fact that the widow's interest under the Intestate Act is now an absolute estate which vests immediately upon the husband's death and attaches whether the property rights owned by the husband at his decease were possessory or non-possessory; whereas, at common law, it was a mere life estate limited to property of which the husband died seised, which did not vest until assignment of the interest to her.

In fact, in Bridgeford v. Groh, supra, we clearly stated that the 1917 Intestate Act, after which the 1947 Intestate Act was patterned, "gives no evidence of any legislative intent to change the common law further than in the quantum of the interest given to the widow": "Appellant contends that the Intestate Act of June 7, 1917, P.L. 429, changed all the prior existing law on the matter before us and his made inapplicable all the earlier decisions. With this broad challenge we cannot agree. In Merrick v. DuPont, 285 Pa. 368, we reannounced a principle operative throughout the whole course of our existence as a Commonwealth in which the foundations of jurisprudence are in the common law, that a statute should be so interpreted that it will accord, as nearly as may be, with the theretofore existing

[ 406 Pa. Page 506]

    course of the common law. We were in that case applying the principle to the very act now before us. It gives no evidence of any legislative intent to change the common law further than in the quantum of the interest given to the widow. The applicable section of the act (section 3) reads: 'The shares of the estate directed by this act to be allotted to the widow shall be in lieu and full satisfaction of her dower at common law, so far as relates to land of which the husband died seized; and her share in lands aliened by the husband in his lifetime, without her joining in the covenance, shall be the same as her share in lands of which the husband died seized.' In the instant case this is a one-half interest in fee simple. All that section 3 provides is that her share shall be the same as her share in lands of which her husband died seized, and the purpose of the clause is to provide that, whereas before the act the widow would have been entitled only to a one-third life interest in land aliened by her husband in his life-time, she is thenceforth to be entitled, where there is only one child, to a one-half interest in fee simple. As was said by the learned judge of the court below, there is nothing which indicates that the real estate aliened by her husband and in which her share is thus fixed shall be considered as of the same value, or as of the same physical condition, or subject to the same encumbrances as it might or would have been had the husband continued to own the property and been seized thereof at the time of his death. It is not to be presumed that by this section of the act it was intended to sweep away all such limitations and qualifications of the widow's claim under such circumstances, as limited her right under the common law. Notwithstanding the many statutes which have been passed giving the widow a statutory right to a part of her husband's real estate in lieu of common law dower, it has always been held that the new interest thus created is in itself

[ 406 Pa. Page 507]

    is possible and the legislature's intent to so eradicate clearly appears.

We thus hold that the plaintiff may not maintain an action in ejectment against her deceased husband's grantees and that her remedy is to have her one-third interest in the controverted property set aside to her by action in partition. If possession of that portion, so set aside to her is interfered with, she may then maintain an action in ejectment against those trespassing upon her rights.

Disposition

Judgment affirmed.

19620313

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