Waugh's Executors v. Waugh , 1877 Pa. LEXIS 178 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court,

If the estate of John Waugh in the land out of which the rents in controversy accrued, had been strictly and technically that of a tenant for life, the.common-law right of his representatives to those rents, subject to the modification made by the revised statutes of 1833 and 1834, would have been clear. Where a tenant for life sows lands, and then his estate is determined, not by his own act, his executors shall have the growing crops, called emblements., Thus if a tenant for his own life sows the ground, and dies before harvest, his executors shall have the emblements, for the estate was uncertain and determined by the act of God: Co. Litt. 55'b. And if tenant for life leases for years, and the lessee for years sows, and after the lessee for life dies before severance, the lessee for years shall have the corn: Gouldsb. 144, pi. 60. The profits of the growing crops, in case the estate of a tenant for life determines by his death before the produce can be gathered, are given on very obvious principles of justice and policy, as the time of the determination of the estate is uncertain. He who rightfully sows ought to reap the profit of his labor; and the emblements are confined to the products of the earth arising from the annual labor of the tenant: 4 Kent’s Com. 73. By the-fifth section of the Act of the 8th of April 1833, it was provided that the emblements, or crops growing on land held by a tenant for life, as well as rents and other periodical payments accruing to such tenant, so far as they should have accrued on the day of his death, might be disposed of by will as other personal estate. And by the seventh section of the Act of the 24th of February 1834, the rents of any real estate accruing to any tenant for life of such estate, who had demised the same for a term not fully expired at his decease, were vested in his executors or administrators, who were required to include in the inventory of his personal estate iSa due proportion of such accruing rent, to be computed according to the time elapsed at his death. If Mr. Waugh, therefore, had been seised of a freehold for life, to which the rules of the common law and the provisions of the statutes of this state were applicable, there would probably be little embarrassment in adjusting the rights of these parties. The wheat growing at the time when the death occurred had been sown by the lessee for years in the fall of 1873, and was the way-going crop for the year beginning on the 1st of April 1873, and ending on the 31st of March 1874. The landlord’s share of the wheat was a portion of the rent of that year. Although severed in the following summer, it had accrued at the date of the landlord’s death in April 1874. If his rights had been those of a tenant for life, it seems obvious that the entire net proceeds of the wheat crop should belong to the executors. The principle of Cobel v. Cobel, 8 Barr 342, in which, under similar facts, it wa.s held that rent went to the devisees of the lessor under the will, and not to the executors, is not applicable in a case like this. The decision there was on the ground that no right to the rent accrued until severance. But the lessor in that case was a tenant in fee, and the question in controversy had relation to the effect on growing crops, as personal property, of a conveyance or devise of land. At least, the executors would be entitled to a share of the proceeds of the wheat crop on some system of apportionment, which need not be definitely settled now. The crop of oats was sown in the spring of 1874,.and the landlord’s share constituted -part of the rent of the farm for the year beginning on the 1st of April 1874, and ending on the 31st of March 1875. The precise date of Mr. Waugh’s death has not been stated in the paper-books, but it occurred some time in April 1874, and if his executors had been entitled to any portion of this crop, it would be too minute to be worth the labor of calculation. In any event, the plaintiffs below, whose estate in remainder became vested in possession at the instant of the determination of the precedent estate, would be entitled to this portion of the fund in dispute.

A more difficult and doubtful question remains to be considered. What was the nature, extent and limit of John Waugh’s interest in this land ? He conveyed it to the plaintiffs by a formal deed on the 7th day of April 1873, for the expressed consideration of $2000, with covenants of general warranty. The description of the premises was followed by an exception of 18 acres which he had sold to one Gelbaugh, and that was succeeded by this clause: “ Possession of all said premises to be given at the death of the said John Waugh, together with all and singular the buildings and improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, .claim and demand whatsoever of the said party of the first part, in law, equity or otherwise howsoever, of, in, to or out of the same.” The deed was acknowledged on the day of its date, and on the following day was recorded.

In the fullest possible form, every interest in this property was transferred except that defined by the words “possession of all said premises to be given at the death of the said John Waugh.” What was the right which the grantor retained ? By the 5th section of the Act of the 28th of May 1715 (1 Sm. Laws 95), all deeds and conveyances duly made, proved or acknowledged, and recorded, were declared to be of the same force and effect in Pennsylvania for the giving of possession and seisin, and making good the title and assurance of lands, tenements and hereditaments as deeds of feoffment, with livery and sejsin, or .deeds enrolled in any of the king’s courts at Westminster were or should be in the kingdom of Great Britain. Free from the limitation imposed by the provision that possession should be withheld, the deed would have carried to the grantees the entire property in all its existing conditions. The growing crops and the rents that had accrued would have passed as appurtenances of the land. In Wilkins v. Vashbinder, 7 Watts 378, Judge Sergeant said that “ in the case of The Bank v. Wise, 3 Watts 394, the court came to the conclusion that where the owner in fee sows land, and afterwards, while the crop is growing, conveys or devises the land, the emblements, that is, the corn growing at the time of the conveyance or the death of the testator, will pass with the land to the grantee or devisee. In this opinion, the judge added, “we all upon mature consideration concur.” This doctrine has been unqualifiedly affirmed in Cobel v. Cobel, 8 Barr 342, and in Burns v. Cooper, 7 Casey 426. By the terms of the deed the grantor divested himself of all existing and all ulterior rights, excepting simply that of occupancy during his lifetime. Included in those divested rights were the common-law incidents of an estate for life. It is not necessary to refer to rules that have established the wide extent and operation of the word “ hereditament” in along line of the older precedents, for this deed expressly conveyed “reversions, remainders and rents,” as well as “hereditaments.” It has been urged that the concluding terms of the grant was a conveyancer’s mere meaningless routine, and that like the old habendum, these terms have “ degenerated,” in the language of Chancellor Kent (4 Com. 468), “into a mere useless form.” But the premises in a deed now contain a specification of the estate granted, and a consideration of the formal words used here is indispensable to a just conception of the scope of this conveyance. Among the rules of interpretation collected in Sheppard’s Touchstone, p. 87, are those requiring “that the construction be made upon the entire deed, and that one part of it doth help to expound another, and that every word (if it may be) may take effect, and none be rejected, and that all the parts do agree together, and there be no discordance therein;” requiring “that the construction be such that the whole deed and every part of it may take effect, and as much effect as may be to that purpose for which it is made, so that when the deed cannot take effect according to the letter, it be construed so that it take some effect or other;” and requiring “ that all the words of the deed in construction be taken most strongly against him that doth speak them, and most in advantage of the other party.” The characteristics of his tenure of this land were stamped on it by Mr. Waugh himself, and the terms he employed were large enough to denude it of the common-law incidents of an. estate for life. At his death the excepted interest was transmitted to the remaindermen. All other rights, including the title to emblements and rents accruing to his representatives, had been already expressly surrendered and conveyed.

It was competent for the grantor to circumscribe the extent of his life tenancy within any limits he might choose to fix. The rule of the common law relating to emblements extended to every case where the estate for life was determined by the act of God or by the act of the law, and not to the cases where it was determined by the voluntary, wilful, or wrongful act of the tenaht himself: 4 Kent’s Com. 73. Thus, if a woman who holds lands durante viduitate sua — which is an estate for life determinable — sows the lands, and afterwards marries before the severance of the com, she will not be entitled to emblements, because her estate determined by her own act: Oland’s Case, 5 Coke 116 a. The same principle applies if a lessee surrender, or if an estate determine by forfeiture or condition broken, for it is the act of the' lessee: Bissett’s Estates for Life 281, and the cases there cited. The like result must., be worked with at least equal efficiency by a written agreement expressly surrendering any of the ordinary legal incidents of an estate in land.

It has been said already that the words of a grantor are to be taken most strongly against himself. Another rule in the exposition of deeds has application here. The provision for the retention of possession by Mr. Waugh was an exception from the body of the estate conveyed, and not a reservation of a newly created right of which it was to be the source. And an exception is always taken most in favor of the feoffee or lessee, and against the feoffor or lessor: ’Shep. Touch. 100. The rule is illustrated in a case quoted in the Touchstone from Perk. Con., § 646: “If a man be seised of a fishing from such a place to such a place, and hath a mill upon the water, and he grant totam partem suce pisearice de D. quatenus terree suce extenclunt, salvo tamen stagno molendini; this exception doth not take away the fishing of the grantee in the mill-pond, but it shall have relation only to the pool to repair [supply water to] the mill.” “When the intent of the parties is clearly expressed, the intent shall govern the construction; but when the import of words is doubtful, and they are applicable equally in one sense and in another, in this case the construction most in favor of the grantee shall be made :” Preston’s Note in Shep. Touch. 101. In this case the words of the grant are large enough to cover the subject of the controversy. To draw an intendment from them that would retain in the grantor the incidents of a common-law estate for life, would require some constructive strain; and established principles require such a strain to be made only in favor of the grantees. Reversing the position of the parties, and supposing the plaintiffs below to have been the owners of the land in fee, And to have conveyed to John Waugh the right to occupy it during life, reserving to themselves all hereditaments, reversions, remainders, rents and profits, it would seem clear that no claim of his executors to emblements could have been asserted at his death. The grant was as explicit, as the case stands, as the reservation would have been in the case supposed. Mr. Waugh, at any time before his decease, could have surrendered Ms life • tenure, and merged it in the remainder; and while it is conceded that there is room for conflict of opinion in a case so balanced as this, it is still believed that the effect of his deed was to vest in the plaintiffs all those incidents of an estate for life whose assertion in favor of the defendants was the foundation of this litigation.

Judgment affirmed.

Mercur, J., dissents.