Harshaw v. Harshaw , 184 Pa. 401 ( 1898 )

Opinion bt

Mr. Chibe Justice Sterrett,

All the facts relating to this contention, as agreed upon by the parties, are set forth in the “ case stated for the opinion of the court below,” and need not be recited here. It is conceded that the single question for the decision of that court was, “ whether the ground rent of one thousand dollars purchased by the said Eliza Harshaw on or about the eleventh day of May, 1887, and issuing out of premises No. 1322 South Seventeenth street,.... is the property of said David Harshaw and Peter Boyd, trustees under the last will and testament of Eliza Harshaw, deceased, or is the property and estate of David Harshaw (the defendant), as residuary devisee under said will.” The court below, having reached the conclusion that said ground rent was the property of the defendant, without filing any written opinion, entered judgment in Ms favor on the case stated. Hence this appeal by the plaintiffs.

By her will, executed March 1,1887, the testatrix devised to the plaintiffs, her executors, two specifically described ground rents, one of $64.00, annually, “ issuing out of premises southwest corner of 17th and Wharton streets, PhiladelpMa” and the other, issuMg “out of the premises on 17th street, adjoming said corner premises,” to be held by them, “ in trust to pay the said rents, as they accrue, to my brother, Obediah Boyd for Ms life,” etc. TMs trust clause contains the following provision: “ Should said ground rents or either of them be paid off at any time, I order and direct my executors to invest the proceeds in legal securities, and hold the same on the same trusts as I have above set forth.” Evidently tMs contemplates oMy payment of one or both of said rents after the decease of the testatrix, and cannot relate to a payment in her lifetime and Mvestment by herself of the proceeds, wMch actually occurred as to the first mentioned ground rent. About two months after execution of the will, the principal ( $1,066.66 ) of that ground rent was paid to testatrix, and the rent was ex-tmgmshed. Shortly thereafter she invested $1,000 of the proceeds in the annual ground rent of $60.00, M controversy, issuing out of premises about 170 feet south of the. corner lot out of wMch the extmgmshed ground rent issued.

The devise of the two particularly described ground rents was undoubtedly a specific devise as to each. One of the two subjects of that specific devise having been disposed of in the lifetime of the testatrix,—absolutely extinguished by payment to her of the principal of the ground rent, ($1,066.66), there was nothing upon which the specific devise could operate, at the time of her decease, except the remaming subject of the devise. It is hornbook law, for which neither argument nor citation of authority is needed, that where a particularly described lot or piece of land is specificahy devised, and after-wards the subject of said devise is sold by the testator or taken from him by operation of law in Ms lifetime, the devisee takes nothing. It was aceordmgly held “that a devise of a particular ground rent is a specific devise, and will be adeemed by the payment and extmguishment of the ground rent durmg the testator’s lifetime: ” Donaldson’s Estate, 11 Pa. C. C. 311.

It was of course competent for the testatrix in this case to have so changed her will that the ground rent in controversy would have been substituted for the extinguished ground rent, but no change or alteration whatever was made in her will. As has already been observed the provision for investment by the executors of the proceeds of extinguished ground rent, etc., relates only to extinguishment of one or both of the rents referred to after the trust became operative by ber death, and not to extinguishment in ber lifetime. She lived nearly two years after slie had purchased the ground rent in controversy, and if she had so desired, she might have provided that it should be substituted for the one extinguished, but she did not do so; and no authority can be found in the will for any such substitution. The court was therefore right in entering judgment for the defendant.

Judgment affirmed.