Hoffner & Farrell v. Wynkoop ( 1881 )

Mr. Justice Trunkey

delivered the opinion of the court, February 7th 1881.

Title to the land was vested in Abraham Wynkoop. He leased to William Horner for the term of five years from March 1st 1849, and gave him the privilege of purchasing on certain terms, at any time before the expiration of the lease. Horner assigned to George Hoffner, upon whose petition the Orphans’ Court decreed specific performance of the contract for sale. Yerdict was rendered for plaintiffs, subject to the opinion of the court on the point of law reserved, “ whether the plaintiffs are concluded by the proceedings in the Orphans’ Court, they not being made parties, or having notice of the said proceedings.”

In strictness, the reservation assumes that the plaintiffs aré entitled to recover, unless barred by said decree; yet the defendants now urge, what they did not in the court below, namely, that the plaintiffs ha.ve no interest in the land because it was devised to other persons by Abraham Wynkoop. If this be so, their claim is groundless, and it is clear that they were not entitled to notice, nor can they question said decree. Abraham Wynkoop’s will is plain. He gives the use of his real and personal estate to his wife, and small legacies to his children, who were .living at its date. His. grandchildren, the plaintiffs, whose father died before the making of the will, are not mentioned. He made no disposition of his property which would remain after the life use, and payment of the specific legacies. There is not a word to indicate a residuary legatee; nor does he nariie any persons who shall be his heirs or next of kin. The giving of specific legacies to designated persons neither makes them residuary legatees nor vests in them the right to take the whole estate as heirs. With less reason can such act be deemed evidence of an intendment to disinherit any one entitled to take as an heir-at-law. The testator provided that part of his real estate might be converted, in the discretion of his widow, and another part upon agreement of his widow, sister and children, whom he named; but was silent as to its disposition whether converted or not. It is impossible to hold that he intended to dispose of the remainder of his estate, for there is no expression from which such intent may be inferred. It therefore passes under the intestate law.

Section 15 of the Act of 1834, Pamph. L. 75, provides, that where a decedent had bound himself in his lifetime to sell and convey real estate, and had made no sufficient provision for the performance of his contract, his executors or administratprs, or the purchaser, or other person interested in such contract, may apply, by bill or petition, to the Orphans’ Court, “and after due notice of such bill or petition, to the purchaser, or to the executors or administrators and heirs of the decedent or devisees of such estate, as the case may require, to appear in such court on a day certain, and answer such bill or petitionand if the case be sufficient in equity, said court may decree specific performance of the contract. In West Hickory Mining Association v. Reed, 30 P. F. Smith 38, it was decided that where the application is by the executors or administrators of a vendor, notice to his heirs or devisees is unnecessary. Prior to that ruling, it was often thought that notice in all cases was necessary to be given to the heirs or devisees, in order that the decree be conclusive against them. This was recognised in the opinion by remarking that, “ while there are enough of dicta in the authorities to inspire some doubt, it is believed that the construction which the language of the statute contains is not inconsistent with any definitive judgment of this court.” After noting the plain and obvious sense of the words of the statute, it was said: “ Three alternative directions are given, one of which is to be pursued as the facts of a particular case shall make it requisite and appropriate. In the first instance, purchasers ; in the second, executors or administrators and heirs of a decedent, and in the third executors or administrators of a decedent, and the devisees of the estate are entitled to notice.”

It had not been doubted that wdien a purchaser applied, notice to the heirs or devisees of the real estate was requisite as well as notice to the executors or administrators. Such is the express direction of the statute. The dicta were, that heirs or devisees of the vendor should be notified, even when his personal representativcs applied; and the dicta were inspired by more than a doubt as to necessity of notice to them for a final decree. Why the statute demands notice to heirs or devisees when the purchaser petitions, and dispenses with it when the personal representative petitions, would be useless to discuss. The distinction is probably for wise reasons.

The defence rested on the decree of the Orphans’ Court. As respects the plaintiffs that decree is a nullity, because of the facts stated in the reserved point.

Judgment affirmed.