Cote's Appeal

Mr. Justice Woodward

delivered the opinion of the court, October 25th 1875.

The will of Michael Tiernan vested the title to his house and lot in the city of Allegheny in his five children, subject to the life estate devised to his widow, Elizabeth Tiernan. Seth Clarke Tiernan was one of these children, and when he died his interest in remainder in this house and lot was part of his estate, for the descent of which provision had been made by the Act of the 8th of April 1833. It is unnecessary to inquire whether, while the tenant for life survived, he could have maintained an application for partition in his lifetime, or whether his representatives could have done so after his death. The life-estate was determined by the death of Mrs. Tiernan, in March 1870. The only question presented is, whether his widow has such an interest as to entitle her to demand a partition of the property.

The rule of the common law is distinct, that a wife is not entitled to dower in land of which her husband was not seised in possession during coverture. A freehold estate outstanding in another, even if created by himself, if before coverture, is fatal to her claim. The present controversy, however, arises upon our own statutes. The Intestate Act of 1833 prescribes the mode by which “ the real and personal estate of a decedent, whether male or female,, remaining after the payment of all just debts and legal charges, which shall not have been disposed of by will, or otherwise limited by marriage settlement, shall be divided and enjoyed.” By the second clause of the first section of the act it is directed that “ where such intestate shall leave a widow and collateral heirs, or other kindred, and no issue, the widow shall be entitled to one-half part of the real estate,'including the mansion-house and buildings appertenant thereto, for the term of her life, and to one-half of the personal estate absolutely.” No case has been found to settle authoritatively the rights of a widow in her deceased husband’s estate in remainder under this provision, or under the Acts of 1794 and 1797. The point was presented in Shoemaker v. Walker, 2 S. & R. 554. The peculiarity there was, that the decedent had aliened in his lifetime the estate with which he was vested in remainder, and the decision that the widow was not entitled to dower was apparently on that ground. But the Act of 1833 was passed to establish a uniform rule for the division and enjoyment *238 of the entire real and personal property belonging to a decedent at the time of bis death. It cannot be doubted that such interest as he had in this house and lot formed part of Seth Clarke Tiernan’s. estate. And if so, the act protects the right of the widow as certainly as it establishes the title under which the collateral heirs must claim the fee. The decedent dying without issue, the property passed to the widow, now Mrs. Mary Cote, one of the appellants, and the next of kin.

The 36th section of the Act of the 29th of March 1832, gives jurisdiction in partition to the Orphans’ Court on the application of the widow or any lineal descendant of a decedent. And by the 46th section of the same act, the same proceedings in every respect may be had on the part of the collateral heirs, when there is no issue, that are authorized on bahalf of lineal descendants.

In either case, the right of the widow to take part in the proceedings is preserved. The title of Seth Clarke Tiernan was a vested remainder. It has become vested in possession, and is subject to all the incidents which statutory enactments have stamped on real estate transmitted by inheritance, as fully as if possession had vested in the decedent before he died. The interest of the widow is defined by the Intestate Act of 1833. Her right to a partition is derived from the express provisions of the Act of 1832. The petition of her present husband and herself for an inquest upon the real estate of her former husband, was improvidently dismissed.

Decree reversed at the cost, of the appellees, and procedendo awarded.