Waugh's Appeal , 1875 Pa. LEXIS 157 ( 1875 )

Mr. Justice Sh-arswood

delivered the opinion of the court, October 12th 1875.

The learned judge below did not consider in fhis opinion the question, what estate John and James took .under the will of their father, William Waugh, in the mansion farm, and woodlands on Bashan. Perhaps it was not presented as it has been in the printed and oral argument in this court. It has been contended, very plausibly, that the brothers took estates tail with cross remainders in fee, so that upon the death of John Waugh, without issue, his original portion would have passed to James Waugh. If that were so, that portion would clearly not be subject to collateral inheritance tax as the estate of John Waugh.

We are of opinion, however, that the brothers took estates in fee, and that the direction “ if any of them should die without lawful heir the survivor to inherit the whole,” meant only to provide against lapse. The direction ip question is followed by a devise to them in technical and unqualified terms “ to hold by virtue of this my last will and testament to them and their heirs and assigns for ever.” The previous provision that “ if James should not choose to build on the part of the land allotted to him, and chooses to sell, I allow him to let his brother John have it at two thousand dollars, besides what he was to pay out of it,” indicates pretty distinctly that the idea of the testator was that each of his sons was to have an estate which they could sell. The collocation of the clause in question before the devise in fee, though not conclusive, aids this construction. When a reasonable doubt exists, the inclination of the courts is to fall back on this construction, because it gives effect to every word and reconciles inconsistencies : Fahrney v. Holsinger, 15 P. F. Smith 394, and cases there cited.

James and John being thus tenants in fee, James by deed June 14th 1852, conveyed his interest to John for the consideration of $3500, and John subsequently sold a portion of it to John Gelbaugh for $1500. This left $2000 as the amount John had paid for what he continued to hold. Then James, by his attorney in fact, on the 7th day of July 1873, released to John whatever interest he might have under his father’s will, upon condition that John would make to his four children (the appellant’s) a deed for the whole of the land, with possession at his death, and accept of their joint note or obligation for the sum of $2000, made payable to him or his estate two years after his death, being the amount claimed by him for the sum paid James for his interest in his part of the land sold him, a refunding of said purchase-money. This arrangement was consummated on the same day by a deed from John Waugh to the appellants for all the lands, “ possession of all said premises to be given at the death of said John Waugh.” As to the original share of John, it is very clear that it is subject to the tax, being within the express provision of the Act of April 7th 1826, 9 Sm. Laws 146, as an interest “transferred by deed, grant, bargain or sale, made or intended to take in possession or enjoyment after the death of the grantor or bargainor.” But as to the share or portion of James Waugh, it appears to us to present a different case. Substantially it was agreed that the appellants should purchase back that share after John’s death by refunding to his estate what he had paid their father for it. Their notes for the $2000 have gone into the inventory of the personal estate, which is, of course, to pay the tax. Part of the consideration undoubtedly was, that John should convey the entire estate to his nephews and nieces. But can it-be said that this share was John’s at the time of his death, or that it was within the spirit of the proviso ? It was in effect a rescission of the sale of 1852, which was evidently a mere carrying out of the will of William, and an agreement by John to give his own original share to the appellants. ■ Had the appellants been strangers — not collaterals— it would have been a perfectly valid transaction founded upon valuable consideration. It is not found or pretended that the object was to evade the tax. The note given for the transfer excluded such a pretension. Had James continued the owner under his father’s will it would have passed to the appellants on his death, and there could have been no claim upon it by the Commonwealth for the tax.

Decree reversed, and now it is ordered and decreed that the appeal by John B. Waugh, William P. Waugh, Mary E. Waugh and Flora B. Dufphey, from the assessment on the home farm and mountain land, valued at $27,600, be sustained so far as regards so much of the said land as was the property of James Waugh, under the will of William Waugh, and that the record may be remitted that an order be made by the Orphans’ Court for a new assessment to be made according to the principles of this opinion. Each party to pay his own costs on this appeal.