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govern. Our former decision must, therefore, stand, with these further reasons for it.

Decree of the Orphans' Court dismissing the petition affirmed, with costs to be paid by the appellants, and their appeal is dismissed. Opinion by AGNEW, C. J. WOODWARD, J.,

absent.

Oct. 10, 1878.

Chess's Appeal.
Middleswarth's Estate.

Will Devise-Legacies, when vested, when contingent-Transmissibility of contingent inte

rest.

A legacy is to be deemed vested or contingent just as the time it is to take effect shall appear to be annexed to the gilt or the payment of it. Where there is no substantive gift, and it is only implied from the direction to pay, the legacy is contingent; provided a contrary intention is not to be collected from the words or circumstances.

A bequest subject to a contingency which does not affect the capacity of the donee to take is vested, and transmissible to donee's personal representatives.

tence, "but the lands shall remain free for their he clearly defined and restricted it in the clause children or heirs." Here we have the clue to we have been considering, and the rule is that the prohibition against alienation and incum- between repugnant clauses in a will the last shall brance. Why shall they not alien or encumber? Because, says the testator, my will is the estate shall remain free (unaffected by their acts) for their children. It is argued this purpose is defective for grandchildren would not take if a parent died before the testator. This is against a settled rule that "children" will include grandchildren when it is necessary to serve the intent of the testator. (Dickinson v. Lee, 4 Watts, 82; Pemberton v. Parke, 5 Binney, 601.) Various readings of the word "children" will be seen in Oct. & Nov. 178, 267. the citations in Yarnall's Appeal (20 P. F. S. 341). This clause further interprets the word "heirs." Here "children," the primary word, precedes "heirs," the secondary, and the latter, as the alternative of the former, expresses the testator's own thought. Yet this clause standing alone might still leave the intention liable to soine contest. But it is followed by another part of the same united sentence, leaving the intent free of all doubt. Thus, "and they my said children shall have the use, income, and profit of the said lands and farms during their lifetime." Here we have two express declarations of intent: the subject of his children's devise is clearly defined, the precise interest of a life-tenant, viz., the use, income, and profit of the lands. Thus the usufructuary interest alone is given, and this is all a life tenant can take. Not content with defining the subject, he becomes finally and fully explicit, and expressly defines the term or duration of the estate itself, viz., "during their lifetime." Now the full meaning and intent of the testator is fully developed and clearly expressed. His own children shall have the use, income, and profits of the lands devised for life only, without power to alien or encumber, in order that these lands shall remain after their death for their children. Then follows the item next to the last which confers a power to dispose by will. Here comes in another thought of the testator, perfectly natural and obvious. Remembering that one daughter is unmarried, and that some of his married children may die without leaving children, or that their children may differ in merits or be unequally provided for, and that he has just prohibited his devisees from enjoying more than a life estate; he thinks of these contingencies, and now gives a power of appointment by will; and to express this intent more distinctly, says, "to take effect after their decease." This is the crowning sheaf of his intention, and shows that he did not intend to give a fee simple when he used the word "heirs" in the principal devise as his own alternative expression for "children" or possibly with a vague conjecture of its meaning. If he used it in a general way, it is plain

M. devised certain real estate to his son J., directing that in case J. should die without having any legitimate issue, the land should be sold, and after paying certain legacies, the balance should be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike. J. subsequently died without issue.

Held (affirming the judgment below), that the interest thus given by M. to his grandchildren was a vested interest and transmissible to the representatives of those of the grandchildren who died before his son J.

Per SHARSWOOD, J. The inclination of the Courts is always in favor of the vesting of legacies, because in ninetynine cases out of a hundred, it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise, indeed full effect is not given to it.

Appeal from a decree of the Orphans' Court of Allegheny County, distributing the fund in the hands of John Hickman, administrator de bonis non cum testamento annexo of the estate of Moses Middleswarth, deceased.

Moses Middleswarth, the testator, died in 1842. By his will he devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining should be "equally divided amongst all my legitimate grandchildren that are now, or may hereafter be born, to share and share alike."

On the assumption that the devise gave him an estate in tail, Jonathan Middleswarth executed an

more.

appropriate deed to bar it, and the land having been reconveyed to him he sold it to one BlackHe died in 1869, without issue, never having been married. Letters of administration d. b. n. c. t. a. on the estate of Moses Middleswarth were granted to John Hickman, who instituted an action of ejectment and recovered the land devised to Jonathan. (See Middleswarth's Administrator v. Blackmore, 24 Sm. 414.) The

administrator sold the real estate which was the

subject of the devise in question, and after payment of the specific legacies and expenses there remained for distribution among the grandchildren of the testator the sum of $11,020.

The grandchildren of testator, excluding those who died before his decease, were thirty-eight in number. Of these, twenty-one died before John Middleswarth, the remaining seventeen still survive.

Upon the audit of the administrator's account, the Court (HAWKINS, P. J.) holding that the legacies vested on the death of testator, decreed

Kelso v. Dickey, 7 W. & S. 279.
Williams on Executors, pp. 795 and 797, and cases
cited 5th Amer. ed.

Oct. 21, 1878. THE COURT. Moses Middleswarth by his last will devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining to be equally divided amongst all his legitimate grandchildren born or to be born, share and share

alike.

The question which is presented for decision upon this appeal is whether the interest thus given to his grandchildren was transmissible to period when the division was to take place.

their representatives on their death before the

No doubt it is the general rule that a legacy is to be deemed vested or contingent just as the time when it is to take effect shall appear to annexed to the gift or the payment of it. Where there is no substantive gift, and it is only implied

from the direction to pay the legacy is contingent. But this rule is of course subject to the

accordingly, and distributed the fund equally among the living grandchildren and the representatives of the grandchildren deceased. Wm. Chess, one of the surviving grandchildren took necessary exception, that a contrary intention is

this appeal, assigning for error this decree of the

not to be collected from the words or circum

Court, in awarding any portion of the fund to the stances. In McClure's Appeal (22 P. F. Smith, representatives of said deceased grandchildren,

instead of distributing the whole fund among the

seventeen grandchildren who survived Jonathan Middleswarth, all of whom are still living.

R. B. Carnahan, for appellant. Where there is no gift but by a direction to pay at a future time or on a given event, the vesting will be postponed till after the time has arrived or the event has happened unless from particular circumstances a contrary intention is to be col

lected.

Leake v. Robinson, 2 Meriv. 387.
Booth v. Booth, 4 Vesey, 399.

2 Williams on Executors, p. 1052, also pp. 1055 to

1059 (3d American edition). Moore v. Smith, 9 Watts, 403. Donner's Appeal, 2 W. & S. 372. Seibert's Appeal, 1 Harris, 501. Bowman's Appeal, 10 Casey, 19. M'Clure's Appeal, 22 Sm. 417. Lamb v. Lamb, 8 Watts, 185.

John D. Shaffer (with him John G. Bryant),

contra.

Whilst the legacies in question were contingent until the death of Jonathan, the death of a legatee did not preclude the possibility of the happening of the contingency, and therefore did not determine the interest, and such a contingent interest is transmissible to personal representatives upon death.

I Jarman on Wills, 777, and cases cited; also vol. ii.
pp. 75, 76, 98, 99, and 100.
Winslow v. Goodwin, 7 Metcalf, 363.
Hopkins v. Jones, 2 Barr, 69.

414), our late lamented brother WILLIAMS, in an elaborate and exhaustive opinion, has shown that there are many cases in which this general rule is not applicable.

In Chew's Appeal (1 Wright, 23), it was said by Mr. Justice STRONG that "generally a bequest after the death of a particular person to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall survive such a person, not to define when the interest shall vest, but only to mark the time when the gift shall take effect in possession, that possession being deferred merely on account of the life interest limited to the person on whose death the gift is to take effect." So in McClure's Appeal (supra) Mr. Justice WILLIAMS said : "Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponea to let in some other interest, the vesting will not be deferred till the period in question." Thus in the common case of a legacy or gift to A. and on his death to B. no one doubts that both interests, the present and the future, vest together at the same instant.

Attaching a contingency to the gift of the second bequest ought not to and does not affect the case, unless that contingency relates to the capacity of the second legatee or donee to take.

In a legacy to A. and if he dies before attainling the age of twenty-one, then to B., the inte

rest of B. though dependent upon a contingency is transmissible. It would be different if the gift over was to B. at twenty-one, for if he should die before attaining that age he could never take, and could therefore have nothing to transmit. It was in accordance with these principles that the case of Kelso v. Dickey (7 W. & S. 279) was decided. There a testatrix bequeathed a legacy to her daughter under the following contingency: "In case she dies before the age of twenty-five or without issue born, then to be divided between my sister and brothers." The daughter died without issue before she arrived at twenty-five. It was held that the legacy was so vested in the sister and brothers of the testatrix as to be transmissible to

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Young v. McIntyre. Partition Parties to the proceedings-Tenant by the curtesy-Husband and wife-A husband is not entitled to curtesy in his wife's estate in remainder when she dies during the continuance of the particular estate-In such case he is no party to proceedings in partition by the heirs. Rule to set aside order of sale in partition. Partition. The plaintiff and defendants were brother and married sisters, devisees under will

their personal representatives in the event of their death before the daughter of the testatrix. Mr. of William J. Young, deceased, their father. Justice SERGEANT said: "The contingency on The will after bequeathing all testator's estate which the legatees over were to take was not a to his wife and unmarried daughters for the life contingency annexed to their capacity to take; of the wife, provided "that, at the decease of his such for example as their living to a certain wife, all testator's estate should be equally divided time; but an event independent of them and not amongst his son and daughters, and their heirs

affecting their capacity to take or transmit the right to their representatives, and such a contingent interest has frequently been decided to be vested so as to be transmissible to representatives." To the same effect is Hopkins v. Jones (2 Barr, 69). These cases are in point and rule that

which is before us.

forever, the daughters' shares to be free from the control of their husbands, and in case of the death of any child before the wife the issue of such child should take the parent's share."

Testator left a son, the present plaintiff, and three daughters, one of whom, Emma, was married at the time of his death to John Richardson, and this daughter died before testator's wife, leaving to survive her the husband, but no issue.

Had the devise been to Jonathan and on his death then to be divided among the grandchildren no one could question the transmissibility of their interests. That they were to take only in case he died without legitimate issue, though it made their interest dependent upon a contingency did not change its character in this respect, because it was not a contingency which affected The children. of testator took a vested remain

at all their capacity to take. Whenever the contingency happened, if ever it did happen, they

would be entitled.

The inclination of the Courts is always in favor of the vesting of legacies, because in ninety

The present rule was obtained by Richardson, on the ground that, as tenant by the curtesy of his wife's estate, he was entitled to be made a party to these proceedings in partition. F. S. Cantrell, for the rule.

der in fee, subject to a life estate in the mother. At the death of his wife, John Richardson became tenant by the curtesy of her share. Blackwell v. Cameron, 10 Wr. 236.

Proceedings in partition will be set aside un

tesy.

nine cases out of a hundred, it is the intention of less provision be made for a tenant by the curthe testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise, indeed, full effect is not given to it. Decree affirmed, and appeal dismissed at the

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Walton v. Willis, I Dallas, 351.
Cote's Appeal, 29 Sm. 235.

C. H. Jones, contra.

The husband cannot be tenant by the curtesy of an estate of which the wife was not actually seized during her life.

Chew v. Commissioners, 5 Rawle, 160.
Shoemaker v. Walker, 2 S. & R. 554.
Hitner v. Ege, 11 H. 305.

In Blackwell v. Cameron, supra, it was held, that a widow was entitled to dower in an estate in remainder when her husband died during the continuance of the particular estate, because her dower was a statutory substitute for dower at common law. But the husband's curtesy is the common law estate of that name.

C. A. V.

Nov. 23, 1878.

Oct. 26, 1878. THE COURT. By the com- | C. P. No. 2. mon law the seizin of the wife must be an actual McQuigan v. Michael McCarthy and Mar

seizin or possession to entitle the husband to an estate as tenant by the curtesy in her lands. Hence there could be no such estate in lands to which she was entitled in remainder, as in the present instance. It was not necessary, therefore, that the name of John Richardson should be joined in these proceedings.

Rule discharged.

Oral opinion by BIDDLE, J.

C. P. No. I.

Lanahan v. Collins.

garet his Wife.

Practice-Capias-Arrest of freeholder-Act

of March 20, 1725.

Rule to abate writ of capias ad respondendum. Trespass on the case, for slander.

The affidavit of Margaret McCarthy, one of the defendants, in support of the rule set forth her arrest under a writ of capias ad respondendum issued in this cause; that at the time said writ issued she was and still is a freeholder, seized in fee of premises in Philadelphia city worth fifty

Nov. 2, 1878. pounds.

Process Service - Non-resident debtor-Citizen

-In order to constitute a valid service upon the clerk of a non-resident, doing business in this State, under the Act of April 21, 1858, the defendant must be permanently residing out of the State at the time of service-In the case of a citizen absent from the State, but retaining an animus revertendi the Act does not apply.

Rule to amend sheriff's return.

This was a summons in case; the writ was

served upon a clerk of defendants' firm of P. & F. Collins, and returned "Served Thos. Collins, a non-resident of this county, but engaged in business therein, by giving a true and attested copy of the within writ to William Martin, a clerk of the said Collins, at his usual place of busi

ness."

The present rule to amend this return was granted on the affidavit of Martin, setting forth that he is not and never has been clerk for the defendant, has no knowledge of the matter in suit, nor of the personal affairs of defendant; that defendant is a citizen of and domiciled in this Commonwealth; that he left here in February, 1878, to build a railroad in Brazil, and is expecting to return home within sixty days.

Winship (with him E. G. Platt), for the rule. Service can only be made personally on defendant as he is a resident absent temporarily. The Act only applies to non-residents.

Act of April 21, 1858, Purdon's Dig. 44, sec. 9.
Campbell, contra.

Defendant has no residence in this State, and although a citizen cannot be considered other

than a non-resident.

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E. B. Watson, for the rule.

Under the Act of March 20, 1725 (Purd. Dig. 48, pl. 46 and 49, pl. 48) the defendant, Margaret McCarthy, being a freeholder exempted from arrest, is entitled to have this writ abated. Mc Kinlay, contra.

Rule absolute as to Margaret McCarthy.

C. P. No. 1.

Nov. 23, 1878. Building Association v. Byrne. [No. 1.] Judgment-Error and appeal The pendency of a writ of error is no bar to a sci.fa. to revive the judgment.

Rule to quash sci. fa. to revive a judgment.

On Dec. 11, 1873, judgment was entered against defendant on a bond and warrant of attorney. May 25, 1878, plaintiff filed a suggestion of breach, and having assessed the damages issued a fi. fa. under which the defendant's property was levied on and condemned. The Court subsequently discharged a rule to set aside the assessment of damages and quash fi. fa., and the defendant then took a writ of error to the judgment, which is now pending. On Nov. 2, 1878, the plaintiff issued the present sci. fa. to revive. F. F. Brightly, for the rule.

A sci. fa. to revive a judgment cannot properly issue while a writ of error contesting its validity is still pending.

Act of June 16, 1836, Purd. Dig. 605.
Boyer v. Rees, 4 Watts, 201.

T. M. Daly, contra.

The Act of June 16, 1836, makes a writ of error only a supersedeas to an "execution."

An "execution" is a writ which authorizes the money due on a judgment to be made out of the property of the defendant.

I Bouv. Law Dic. p. 554.

This is not the function of a sci. fa. to revive a judgment, and hence it is not an "execution." While the writ of error is pending the record is still in the Court below for the purpose of lien, and it is no bar to a sci. fa. to revive a judgment. Snook v. Mattock, 5 Ad. & El. 239. Falkner v. Franklin Ins. Co., I Phila. 183.

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to a vend. ex. when the property has been levied on and condemned under a fi. fa. issued prior to the teste of the writ of error.

Rule to quash vend. ex.

The defendant's property having been levied on and condemned, the plaintiff issued a venditioni exponas to have the same sold; the teste of the vend. ex. was subsequent to that of the writ of error, whereupon the defendant obtained the present rule on the ground that a writ of error was a supersedeas to an execution not completed.

Brightly, for the rule, relied on the Act of June 16th, 1836.

Daly, contra. Where a levy is made under a fi. fa. the execution is so far perfected as not to be superseded by a writ of error.

Patterson v. Juvenal, I Tr. & H. Pr. 688, n. 5.
Bryan v. Comly, 2 Miles, 271.

The execution is entire, and the vend. ex. only

issues to complete what the fi. fa. has begun.
Chester v. Peeter, Cro. Eliz. 597.
Tocock v. Honyman, Yelv. 6.
Meriton v. Stevens, Willis, 271.

This is settled by the English cases as regards personalty, and there is no reason for a distinction in regard to realty.

Bozarth v. Marshall, I Phila. 172.

Nov. 30, 1878. Rule discharged.

C. P. No. 3.

C. A. V.

October 18, 1878.

Greenough v. Kase.

Execution when bail in error not perfected within ten days after exception-Rule V. of the Supreme Court.

Rule for judgment on answers of garnishee in an attachment execution, notwithstanding a writ of error had been taken upon the judgment against defendant.

Defendant had taken a writ of error on the judgment against him, and had also entered security. It was certified, however, by the Prothonotary of the Supreme Court, that the defendant had failed to justify his bail within the ten days, as required by Rule V. of the Supreme Court, which provides, inter alia :

"The defendant in error or appellee may, within twenty days after notice of the taking of bail in error, except to the sufficiency thereof, when the plaintiff in error or appellant must either put in new bail, or the old bail must justify within ten days after exception taken; in default whereof the writ of error shall not be a supersedeas of the execution."

S. G. Thompson and Geo. L. Crawford, for the rule.

The plaintiff had a right to take out a writ of error even without entering bail, but it would not have been a supersedeas.

Act of June 16, 1836 (Purd. Dig. p. 605, pl. 16). And with his bail not perfected as required by rule of Supreme Court, the judgment of this Court is a good judgment, and we have a right to issue execution on it.

Henry v. Boyle, I Miles 386.

Rheem v. Naugatuck Wheel Co., 9 Cas. 356. Francis E. Brewster and F. Carroll Brewster, contra.

The writ of error having been taken out on the judgment, the record is no longer before this Court, and defendant has no right to issue execution on the judgment. The writ has not been nol. prossed. On the contrary, the bail were approved by the Prothonotary of the Supreme Court.

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Sale of real estate for the payment of decedent's debts-Validity of, when made more than five years after the order for such sale was granted -Acts of March 29, 1832, Feb. 24, 1834, and April 13, 1854-Jurisdiction of Orphans' Court in such case-Commissions of executors, etc. When due.

Sur petition to vacate confirmation of sale and answer.

The executor of decedent's estate presented his petition May 10, 1873, praying for the sale of real estate for the payment of debts. Thereupon, under several orders of sale, all of the real estate, consisting of thirty-six lots of ground, was sold, except two lots. On the 24th day of September, 1877, the executor filed his account, which was confirmed in June, 1878, and which showed a balance due the executor of $5674.81. This balance consisted almost entirely of com

missions and salary due the accountant. The account showed that all the debts of the testator had been paid, except a balance, amounting to $4000, of a mortgage given by him in his lifetime, and the above sum due the executor, and some trifling items of indebtedness. These last items have been paid out of rent. received by the

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