Graham v. Knowles

Opinion,

Mr. Justice Sterrett:

This action was brought by the appellees, as next of kin and heirs at law of Miss Rebecca M. Clark, deceased, against Hosmer B. Parsons, to recover ground-rents issuing out of land now belonging to him, but formerly owned by said decedent.

The rent in controversy having been claimed by the appellants, as beneficiaries under the will of Miss Clark, the defendant Parsons was permitted to pay the same into court, and thereupon issue was joined between the appellees and said claimants, to determine which of them was entitled to the money. The facts upon which the claim of each party to the issue, respectively, is grounded, are set forth in the appellees’ statement, and in the affidavit filed by the appellants. In the former, a prima facie case in favor of the appellees is presented, and the question in the court below, as here, is whether that ease is successfully met by the averments in the affidavit of defence, which, for the purposes of this case, must be accepted as true. The learned judge of the Common Pleas, being of opinion that appellants’ claim to the money in court was not sustained, entered judgment against them for want of a sufficient affidavit of defence; and hence this appeal.

It is conceded that the ground-rent security belonged to Miss Clark at the time of her decease in February, 1887, and if the same was disposed of by her will made in January, 1847, the judgment should have been in favor of appellants, who claim under the only dispositive provision contained in said will, which is as follows, viz.:

“ All my estate, both real and personal, that I shall inherit as my portion after my father’s death, I give and bequeath to my beloved cousins, Dr. William Gray Knowles and his wife, Martha Ann Knowles, their heirs George Gray Knowles, Mary Warfield Knowles, Gustaras Warfield Knowles, and Louisa Yictoria Knowles, their heirs and assigns forever.”

This testamentary provision was before this court for construction in Graham v. Grugan, 182 Pa. 79. In that case, as in this, it appeared that the testatrix was one of six children of Mrs. Sarah L. M. Clark, who, about the year 1840, died intestate, seised of certain real estate which descended to her said children subject to the tenancy by the curtesy of her surviving husband, who died in 1868. In 1869, the children of Mrs. Clark, by mutual deeds of partition, divided a portion of the real estate which descended to them as aforesaid, and the premises in controversy, in the case above cited, inter alia, were conveyed in severalty to the testatrix, Rebecca M. Clark. The action of ejectment was brought by the heirs at law against those in possession under the devisees named in the paragraph of her will above quoted. The only question was whether the premises in controversy passed under the will. It was held that they did; that the provisions of the will were applicable to the testatrix’s share of the real estate which descended to her from her mother, and which at the time was owned by her, and not to that which she possibly might inherit subsequently from her father.

In principle, that case is substantially the same as the one now under consideration. The fact that the subject of dispute in this case is the ground-rent, while in the former case it was the possession of part of the land inherited by testatrix from her mother, can make no difference. It clearly appears by the averments contained in the affidavit of defence that the ground-rent represents a portion of the real estate so inherited.

In the partition above referred to, a lot of ground out of a part of which the rent in question issues, was conveyed in severalty to testatrix. In 1872, for the purpose of improving the lot, she conveyed the same to Patrick Lafferty, reserving thereout an annual ground-rent of $601.80 ; and, pursuant to agreement made at the time the ground-rent was created, she afterwards extinguished it, and in lieu thereof accepted several smaller ground-rents, including that in controversy, on subdivisions of said lot, which in the meantime had been improved. The ground-rents thus created and acquired were owned by her at the time of her decease, and passed by her will to the devisees therein named, just as did the land which was the subject of dispute in Graham v. Grugan, supra. It was never intended that the will should operate only on what the testatrix might inherit from her father; on the contrary, as was held in the case above cited, she evidently intended to dispose of all her “ estate, both real and personal.” By the words, “ that I shall inherit as my portion after my father’s death,” she must have meant property into the actual possession and enjoyment of which she would come at the decease of her father. The word “ inherit ” was not used in a technical sense. It often means “to become possessed of; ” and in that sense it was doubtless employed by the testatrix. In the language of her will, what she gave was, “ all my estate, both real and personal.” The generality of these words was not intended to be restricted by the explanatory words used to indicate the time when she would come into the actual possession and beneficial enjoyment of the only property that was then subject to her testamentary disposal.

It follows from what has been said, that the testatrix, Miss Clark, did not die intestate as to any part of her estate, either real or personal; and hence the ground-rent in question passed under the provisions of her will to the devisees therein named. The learned court therefore erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed, and record remitted.

On May 25, 1891, a motion for a re-argument, filed on behalf of the appellees, was refused, the principal ground alleged therefor being in substance as follows:

That the opinion filed indicated that the .ground-rent in controversy was reserved by Sarah Clark, the mother of testatrix, and as such inherited by the latter, and, therefore, an inherited ground-rent was the same in principle as an inherited portion of land, and the position of the appellees the same as in Graham v. Grugan, 132 Pa. 79, that the will operated only on what testatrix took from her father. But the facts were, as disclosed by the statement and affidavit of defence, that the ground-rent was never inherited at all, and the land inherited was sold and the ground-rent purchased by testatrix thirty years after her mother’s death, thirty-five years after testatrix made her will, and five years after her father’s death; so that it did not come within the clause explanatory of the time when she was to come into possession and beneficial enjoyment of the only property that was then subject to her testamentary disposal.

Opinion, Mr. Justice Stebbett :

We adhere to the opinion heretofore expressed, that, under the will of Rebecca M. Clark there was no intestacy as to the ground-rent in controversy, and hence the plaintiffs who claim as her next of kin and heirs at law have no case. It was not intended that our judgment should rest on any other ground than that all the real and personal estate, of which testatrix died seised or possessed, passed by her will to William Gray Knowles and others, sole beneficiaries therein named. If the gift to them had been specific, as claimed by plaintiffs, and restricted to the property which testatrix acquired by descent from her mother, the result would have been different; but that, we think, cannot be regarded as the proper construction of the will, the operative words of which are “ all my estate both real and personal.” The generality of these words is not restricted by anything that appears in the context;

Motion for re-argument denied.