Reed v. Palmer , 1867 Pa. LEXIS 33 ( 1867 )

The opinion of the court was delivered, by

Woodward, C. J.

The title to the lot in question, originally in Charles Avery, was by him conveyed to W. M. Shinn, who conveyed it to his ward, Mary Rebecca Palmer, in fee. Upon this state of facts, there is no ground of doubt that she takes title as purchaser from Shinn, and not by descent from her mother. But Shinn had the title subject to certain trusts, one of which was, that after the death of Avery, if his wife Martha did not impeach his will, but should elect to take under it, the rents, issues and profits of the lot should go to Mrs. Palmer, and after the death of Mrs. Avery the title should be conveyed to Mrs. Palmer in fee. This it is supposed vested an equitable estate in remainder in Mrs. Palmer, which at her death descended to her infant daughter, and therefore that the Orphans’ Court and not the Common Pleas had jurisdiction to decree a sale.

The Act of 18th April 1853, Purd. 851? gives the Orphans’ Court jurisdiction where real estate is acquired by descent or last will, and in all other cases it is given to the Common Pleas; and by the 5th section of the supplementary Act of 27th April 1855, Purd. 854, whenever the estate shall have been derived partly by deed and partly by descent or will, either court may entertain jurisdiction to make sale or lease thereof.

Now, it is not worth while to consider whether the trusts expressed in the deed of Avery to Shinn vested a descendible estate in Mrs. Palmer, because if it be admitted that such was their legal effect, and that Mary Rebecca acquired that estate by descent, it was nevertheless a mere equity, the legal title remaining still in Shinn. And when he conveyed the legal title to Mary Rebecca after the death of her mother, the case had occurred of an estate “ derived” partly by descent and partly by deed, and this gave either court jurisdiction, that which first attached becoming exclusive.

The objection that Shinn conveyed the legal title before the death of Mrs. Avery, is one that Mrs. Avery might, perhaps, have urged ; but it does not lie in the mouth of the purchaser to urge it. If it was, strictly speaking, a violation of the power, it is cured by the death of Mrs. Avery since. The ward and her guardian do not complain, and Mrs. Avery being dead there is nobody else in existence who has a right to object.

The judgment is affirmed.