DocketNumber: Appeal, No. 158
Citation Numbers: 47 Pa. Super. 520, 1911 Pa. Super. LEXIS 193
Judges: Beaver, Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 7/13/1911
Status: Precedential
Modified Date: 10/19/2024
Opinion bt
By a written article of agreement the plaintiff covenanted to convey to the defendant, by good and marketable title, a small lot of ground containing about a half an acre, in consideration of which the defendant agreed to pay the sum of $500. The plaintiff, alleging that he was able and willing to convey such title and had made tender of a proper deed, brought this action of assumpsit to recover the purchase money agreed on. The defendant, admitting its obligation and asserting its willingness to pay, denied that the plaintiff was able to perform his agreement or to convey a marketable title to the land covered by the article. The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and this appeal follows.
The record exhibits the following facts about which there is no dispute: F. M. George, the father of the plaintiff, died in 1902 testate, seized of several parcels of real estate and also of personal property. He left to survive him a widow and a number of children. His will, executed in 1901, contains a number of paragraphs, each carrying a separate and distinct devise or bequest, and in order to make clear the exact point at which the present controversy arises it becomes necessary to give a brief
The appellant contends that the effect of the seventh clause of the will just quoted was to cut down the estate of the plaintiff, not only in the homestead property devised to him and his mother in paragraph one, but in all the real estate devised to him in any portion of the will, thus including the separate devise made to him in paragraph two, under which, as stated, he acquired such title as he has to the land he undertook to convey to the defendant. The appellee contends that under no proper construction of the will as a whole could it be held that
As we have already seen, the testator died seized and possessed of both real and personal estate. Separate devises of the land are made to the different persons who were the objects of his bounty as well as separate bequests of money or other personal property. Looking then to the seventh paragraph we discover that in case of the death of the wife and of the son Lambert “without issue,” the direction is that “the property be sold and the proceeds be equally divided between my grandchildren.” To what did the testator intend to refer by the expression “the property”? Primarily the word “property” is broad enough to include both real and personal estate. It was said in Rossetter v. Simmons, 6 S. & R. 452: "Property signifies every species of property; it is nomen generalisimum, and comprehends all his (the testator’s) earthly possessions.” Now it seems to us plain enough that the testator could not have intended, by the language used in the seventh paragraph of his will, to disrupt the entire scheme of the distribution of his estate provided for in the previous clauses. And if he did not intend the words “the property” to be used in their widest legal sense and thus to include both real and personal estate, for the same reason we think he could not have intended them to apply to all of the real estate he had previously devised. In the fifth paragraph of his will he had given, as we have observed, to his son Fletcher certain lands and personal property. The devise and bequest therein contained are complete, distinct and without any qualification whatever. There is nothing to
We have already noted that in the very opening language of the will the testator devises his home property to his wife Mary during her natural lifetime with remainder over to his son Lambert. At that time the son was unmarried, probably residing at home with his parents. There is evidence in the will that the testator contemplated this property as a joint home for his widow and son as long as conditions should remain as they then were. Later on he directs that this same son was to provide for and support his mother, thus indicating that, in contemplation of the testator, his wife would survive him and his son would survive his mother. If then both remained unmarried and both died without issue, the testator would be but following an inclination, shared by perhaps a majority of men, that his home, as distinguished from other property he might accumulate, should remain in the line of his blood and go to his grandchildren.
This view of the case makes it unnecessary that we should consider the other line of argument advanced by the appellee. We have already indicated that the will itself contains language pointing strongly to the conclusion that the failure of issue therein referred to would not, in the contemplation of the testator, happen in his lifetime, nor even in the lifetime of his wife who was the first object of his bounty. Under this state of facts, and in the light of the recent case of Smith v. Piper, 231 Pa. 378, it would not be difficult to produce a very convincing argument to support the conclusion that there is nothing in the seventh paragraph of the will legally sufficient to cut down the estate in fee simple devised to the plaintiff in the second. But as we have concluded to rest our judgment on the other proposition which we have already elaborated, we need not pursue this question.
Judgment affirmed.