May 21, 1897. queathed the residue and remainder of his estate to his brothers and sisters then living and the issue and descendants of any of them dead and to Potts, Administrator v. Breneman. Will-Construction of Power of sale to executors Edith Fodell Shulze-a codicil to the will giving -Where said power rests in administrator c. t. the latter a life estate in the share bequeathed and a.- -Technical words "Remainder," mean-devised to her. The testator appointed his wife, ing of. The duration of an executor's power to sell real estate depends upon the intention of the testator as gathered from the whole will. A power to sell real estate given to executors for the purpose of distribution, belongs to them virtute officii, and may be exercised by an administrator d. b. n. c. t. a. M. by his will gave the use of rents, income and interest of all the rest, residue and remainder of his estate to his wife for life, subject to an annuity; and upon her death he gave, the "said residue and remainder of my estate, real, personal and mixed, unto all my brothers and sisters then living, and the issue and descendants of any of them then dead." He made his wife E. executrix of his will, "with power and authority to sell, dispose of and convey in fee simple any or all of my real estate." He further directed that his wife should "not be required, by any Court, to give security, to secure the interest of the person or persons entitled in remainder to any part or portion of my estate." E. having died, an administrator de bonis non of M.'s estate was appointed, who entered into articles of agreement with J. for the sale of certain lands of the testator M. When the deed was tendered J. refused to accept it, on the ground that the administrator de bonis non had no power to sell, the said power in the executrix having terminated at the death of the widow; and that the administrator could not make title: Held, that the title was good, and that the administrator de bonis non, had a power of sale. While the word "remainder" is used technically to describe an estate in land, may be used in the sense of "balance of," "what is left," or "what may remain." Appeal of Joseph P. Breneman, defendant, from the judgment of the Common Pleas of Lancaster County, upon a case stated, in the nature of an amicable action in assumpsit, between Joseph M. Potts, administrator d. b. n. c. t. a. of the will of Samuel Miller, deceased, and Joseph P. Breneman, to determine whether or not the administrator d. b. n. c. t. a. had power and authority, under the will of Samuel Miller, deceased, to sell the real estate of the testator. The facts of this case, as set forth in the case stated were substantially as follows: Eliza Sener Miller, sole executrix of his last will and testament, "with power and authority to sell, dispose of and convey, in fee simple, any or all of my real estate and change any investments of my personal property as she shall deem most advantageous to her and to my estate. And I direct that my said wife shall not be required by any Court to give security to secure the interest of the person or persons entitled in remainder to any part or portion of my estate of which she shall, under this my will, be entitled to the use, rents, income and interest during life, as hereinbefore provided, whenever the same shall accrue or vest in possession." The widow and executrix died December 30, 1896, and on January 2, 1897, letters of administration d. b. n. c. t. a. were granted to Joseph M. Potts, he having given adequate security. At the time of the making of his will and at the time of his death the testator owned a lot of ground in Philadelphia, timber lands in Forest and Venango counties, and left about $30,000 of personal property. The residuary legatees and remaindermen under testator's will at the time of the death of his testatrix consisted of Edith Fodell Shulze, of one surviving sister, Anna Miller, and of the children, grandchildren and greatgrandchildren of seven other brothers and sisters -about sixty in number and widely scattered over the United States. grant of letters to the administrator d. b. n. c. t. a. After the death of the executrix and after the ment of sale for one of the tracts of real estate. the latter, plaintiff in this case, executed an agreeThe purchaser declined to take his deed because of doubts as to administrator's power to sell under the will. Thereupon this case stated was framed to determine whether or not the adminis under the will of Samuel Miller, deceased, to sell trator d. b. n. c. t. a. had power and authority the real estate of the testator. that the administrator d. b. n. c. t. a. had power Upon these facts the Court was of the opinion under the will to sell decedent's real estate and to Samuel Miller, late of Philadelphia, died, testate, March 30, 1874. His will gave to his wife his household furniture and goods, and, after the payment of his debts and funeral expenses, the use of all the remainder of his estate for her na- make a good and legal title to the defendant, and tural lifetime, subject to an annuity of $300 to entered judgment accordingly, saying, inter alia: Mary McCullouch for her lifetime. (Mary McCullouch died during the lifetime of the executrix, widow and life tenant.) After the decease of the widow the testator gave, devised and be "From the terms of the case stated, we learn that Samuel Miller, the testator, left a considerable estate, real and personal. His widow survived him more than twenty years. At the time of her Rapalje and Lawrence's Law Dict. Hunt's and Lehman's Appeals, 105 Id. 128. Mitchell, Adm. v. Railway, 165 Id. 651. Darlington v. Darlington, 34 WEEKLY NOTES, 85. W. U. Hensel, (J. H. Brown with him), for appellee. decease, and we may say, presumably, at the time titled in remainder, shows that the power of sale of the testator's decease, his relatives, heirs and was to end with the life of the widow. legatees, as we have seen, were scattered over It was the intention of the testator that the (many of) the United States. While he gave his real estate unsold, should descend to his heirs at wife the use, income and profits of his estate, she law, upon the widow's death. The use of the was given no power to use or consume any part word "remainder" clearly proves that, for reof the corpus or principal. She had full power mainder refers only to real estate. and authority to 'sell the lands and to change the| investments and securities.' Under the will she was undoubtedly authorized to convert the whole estate into money at any time she chose, and to have it in this form, for distribution at the time of her death, there need have been no real estate to be sold after her death, if she had seen proper to sell it during her life. It will be observed that the power to sell is not given to her nominatim merely, nor to her . . . . . as his wife or widow, as life tenant, or as the beneficiary of the trust. . . . . In this case Samuel Miller most unques- The power of sale was given for the purposes tionably gave his executrix power to sell all his of making distribution, and in such a case the real estate with a view to and for the purpose of distribution. He had no children. His wife was not to have, receive or take any portion of the corpus of his estate for her use or benefit during life. He gave to his executrix full power and authority to sell, dispose of and convey in fee simple any and all of his real estate, and change any investments of his personal property, as she shall deem most advantageous to her and to his estate; and for the purposes of distribution he blends his whole estate, the rest, residue and remainder, real, personal and mixed, into one fund, and directed distribution to be made at the decease of his wife, as directed by and to the persons named, or described, in his will. When his wife died, and the estate came to be distributed, his executrix was dead, and an administrator d. b. n. c. t. a. was, as we have seen, duly appoint ed. power belongs to the executor "virtute officii." Lantz v. Boyer, 81 Id. 325. When lands are devised to executors to be sold, or a power of sale is given to them, an administrator de bonis non with the will annexed has the same power. Act of March 12, 1800, sec. 2, P. L. 434. Act of February 24, 1834, secs. 13, 14, 67, P. L. 75. Woerner on Administrators, sec. 339. Livingood v. Heffner, 21 WEEKLY NOTES, 149. In all the cases cited by the appellant the language used in the will shows the intention to limit the power of sale within a fixed time. July 15, 1897. DEAN, J. We have nothing to add to the able opinion of the learned Court below, vindicating his judgment on the case stated, except to do what probably he had no opportunity to do, distinguish the cases cited by appellant in the argument before this Court, from the one in hand. In Wilkinson v. Buist, 124 Pa. as-253, this Court held, under the terms of that will, "The power of sale was absolute and belonged to the executrix virtute officii, and, therefore, may be properly and legally exercised, the real estate sold, the estate settled and distribution made as directed by the will, by the administrator d. b. n. c. t. a. under and by virtue of the provisions of the Act of February 24, 1834, P. L. 75.” Whereupon the defendant took this appeal, signing for error this action of the Court. J. W. Brown, for appellant. the power to sell ended with the life estate, because the testator plainly so intended. In Fidler et al. v. Lash, 125 Pa. 87, the sole purpose in The language of the will does not authorize the executor to sell the land, beyond during the life-creating the power to sell, was to provide for the time of the widow. Wilkinson v. Buist, 23 WEEKLY NOTES, 311. Fidler v. Lash, 23 WEEKLY NOIES, 449. The direction that the executor should not be required, in selling the land, to give security to secure the interest of the person or persons en widow during her lifetime. Necessarily, the intention was, that it should end with her death. In Swift's Appeal, 87 Pa. 502, the fact as found by the Court was, that enough realty had been sold to pay the devises; that for this purpose alone, the power had been conferred, and when the purpose was accomplished, the power was being what is known as a shell of a building; the exhausted. There is, really, no conflict in these paint on the outside was much faded and worn cases with those cited by the Court. The direc-off and the outside of the shop much weathertion, that his wife should not be required to give beaten. About that time the owners of the lot security, to secure the interests of the persons and shop entered into a verbal agreement to sell "entitled in remainder," and the words "bequeath the same to George Helman and Lida Ellen his the said residue and remainder of my estate," are wife, which was consummated by deed dated not significant of a limitation of the power, in November 20, 1893, and duly recorded, and also view of the whole will, and especially of the agreed with George Helman and his wife, for the codici. True, technically, a remainder is an es- sum of $450, to erect and construct a dwelling tate in land, limited to take effect and be en-house upon said ground, using as much of the joyed after another estate is determined; and such old shop and materials composing it as could be estate vests immediately on the death of the gran- used in the construction of the new dwelling tor, to be enjoyed in possession after the deter-house. mination of the particular estate. But, the testa- In accordance with this agreement the plaintiff tor, manifestly, here used these technical words, went on and constructed a two-storied sixin the sense of "balance of," "what is left," or roomed dwelling house upon the ground former"what may remain." ly occupied by the shop, taking down one end The judgment is affirmed on the opinion of the wall of the foundation and rebuilding it with a Court below. Superior Court. S. H. T. new chimney of three flues resting upon it and extending up through floors and the roof, taking out old cross sills and putting in new cross sills, taking off all the weatherboarding on one end; about one-half of it on the other end and much of it from the sides of the shop and putting on new weatherboarding, taking out some of the studApril 21, 1897 ding and putting in new ones, took out all the windows and door frames, enlarged the window, closed up some of the old openings for doors, Mechanics liens-Execution and construction-cut new openings in other places and put in new New buildings-What constitutes-Evidence of pannel doors with transoms over some of them, -When question for the jury. April '97, 150. Superior Court. Grable v. Helman et ux. instead of the old batten doors that were there; trimming the windows and door frames with caps of new designs; building a porch with railings around it and steps with railings on the steps, lathing and plastering the entire inside walls and partitions, laying new floors in places, building stairways, partitions, halls, cupboards, clothes presses, etc., the outside of the building being painted and trimmed in two colors of paint and the roof receiving a coat of new paint. Appeal of E. L. Grable, plaintiff, from the judgment of the Common Pleas of Westmoreland. The defendants having failed to pay when the County, in an action sci. fa. sur mechanics' lien, building was finished, the plaintiff filed a mebrought by E. L. Grable against George Helman chanics' lien and issued a sci. fa. thereon. At the and Lida Helman his wife, to recover $453 for trial a number of the plaintiff's witnesses testified work done and materials furnished for and about that the building had the appearance of a new the erection and construction of a certain build- building. On motion of the defendant, a compuling. sory non-suit was granted, which the Court subsequently refused to take off, McCONNELL, J., filing the following opinion: Upon the trial, the following facts appeared: In July, 1893, the plaintiff, E. L. Grable and A. C. Betts, were the owners of a lot of ground in "There can be no question about the law of the borough of Manor, Westmoreland county, this case. In order that the plaintiff may be able Pennsylvania, having thereon a building origi- to sustain his lien he must show such a change nally built for, and used for a time as, a broom of structure of the building in question as to confactory or shop, but afterward used as a carpenter stitute it, in common parlance, a new building. shop, 13x34 feet, two stories high, without lining This change must be due to a change of strucor plastering, stairways, partitions, halls or porch, ture-and such change must be manifested by the external appearance of it. A change due to the serve that purpose in the disposition of the case. buildings being devoted to a different use—or a "It is not contended that the case should have change of the interior arrangement of the build- been submitted to the jury to determine whether ing not manifest in the external structure-will the changes testified about amounted to a new not suffice. A a erection, unless the question be a doubtful one. The authorities clearly hold that where the facts are ascertained or undisputed, it is for the Court to determine what does or does not constitute new buildings: Norris's Appeal, 30 Pa. 122; Amstrong v. Ware, 20 Id. 519; Patterson v. Frazier, 123 Id. 420. "The lien purports to be-and in point of fact must be for materials furnished in and about the 'erection and construction' of a building. "(a) 'Structure' can only mean one thing, i. e. form, manner of building or construction. change of structure of course would mean change of such form, manner of building or con"(d) There could be no controversy about the struction. The outline of this building was not facts at the close of plaintiff's testimony. The changed-except by the addition of a porch or facts of the case were such as they appeared to portico. Some changes were made in the win- be from plaintiff's own testimony. Taking them dows and doors-some new material used in the to be such we can reach no other conclusion than end-two flues instead of one were furnished for that the changes did not amount to a new ereca chimney-but the general contour of the build- tion." ing remained substantially the same. The build ing lines were the same; the dimensions were unchanged. Whereupon the plaintiff took this appeal, assigning for error, inter alia, this action of the Court. John D. Gill, (with him Spiegel and Mc Geary), for appellant. "(b) If the use of the building had not been changed from a shop to a dwelling house and a coat of paint had not been put on the structure, there would have been little indication, to the eye of an external observer, that there had been pletely changed that, in common parlance, it may 'erected or constructed' a new building. be properly classed a new building, or rebuilding, Where the structure of a building is so com "We don't think any one would have called it it comes within the lien law. This is sometimes a new building-or even a reconstructed build-difficult to decide, and then it must be left to the ing. Of course a change of use from shop to jury. dwelling house would give it a different appearance-but that is not a change of structure. "(c) It is argued that because some of the witnesses said it looked like a new building and to Armstrong v. Ware, 20 Pa. 520. It is not the extent of the alterations made, but all intents and purposes was a new building, etc., the effect they produce on the external appearthat therefore the Court was in error in entering ance of the building which determines whether the non-suit. it is to be regarded as a new building. Miller v. Hershey, 59 Pa. 69. "We need only say that as opinions merelysuch statements have no value at all. Testimony, such as we were entitled to have in a case of this Patterson v. Frazier Bros., 23 WEEKLY NOTES, 143. for appellee, did not present a paper book. V. E. Williams, (with him Sloan and Griffith), kind, must deal with facts and not with opinions. Witnesses cannot be allowed to thus usurp the functions of Court or jury. They could probably say, as matter of description, in summing up the July 23, 1897. REEDER, J. This is an action totality of effect produced by the changes about upon a sci. fa. upon a mechanic's lien. The which they had testified, that it looked like a question for determination in the Court below new building. But even if that be admissible we under the pleading was whether the building was must still look quite through that descriptive an old or a new structure, there having been no phrase and see that the substance under it is notice at the time the work was begun of an inchange of structure and not change of use, or something else that does not constitute 'erection, construction or reconstruction.' We must look at the facts the phrase is supposed to describe, and see whether, in whole or in part, they are the plaintiff's proofs disclosed that there was not things which do not constitute erection and con- such a change of structure in the building as to struction, for if they do not the mere use of the constitute it a new building. phrase must not cheat us into allowing them to tention upon the part of the plaintiff to file a mechanic's lien. A compulsory non-suit was entered by the Court below upon the ground that The building that was altered was a broom fac tory, afterward used as a carpenter shop, two ed a new building, or a rebuilding, and it was stories high, without lining or plastering, stair- error to enter a non-suit. ways, partitions, halls or porch. The house was altered by the plaintiff to a two-story six room tained, judgment reversed and a venire facias de The fifth assignment of error is, therefore, susdwelling-house, one end wall of the foundation novo awarded. being taken down, rebuilt with a chimney of three Common Pleas. Common Pleas. Company. S. H. T. Dec. '96, 414. Practice-Insufficiency of statement—Demurrer. based upon an express contract or a quantum meruit is A statement which fails to show whether the claim is defective. ding taken out, new ones put in, all the windows Wells & Son v. Real Estate Investment and door frames taken out, the windows interchanged, some of the old openings for doors closed and new openings put in other places, panel doors with transoms over them being substituted for plain batten doors, the windows and door frames being trimmed with caps, and a porch with railing around it and steps with railing in front of the house, the entire inside walls partitioned, lathed and plastered, new floors in places, new stairways, cup-boards, partitions, clothespresses, etc. A number of the witnesses testified that it had the appearance of a new building. One of the witnesses, Mr. Kelly, says, "It has the appearance of a dwelling. Formerly it had the appearance of a shop, a very loosely constructed building. To all appearances I would say it presents the appearance of a new building, that of a dwelling." Another witness, Henry Struble, says, "It presents the appearance of a new building. The old factory and shop had been converted into a dwelling house." Mr. Cameron says, "It appears like a new building to me, I cannot distinguish any parts of the old building." Mr. Dewalt says, "This building has a general appearance to me of a new building altogether, different from what it was, the way it is fixed up." The statement should contain a specific averment of facts sufficient to constitute a good cause of action. This was a demurrer to a statement in assumpsit. The statement set forth that the action was That plaintiffs, at defendant's express request, perbrought to secure the sum of $800.09 with interest. formed the work and labor and furnished materials The exhibits consisted of original entries from at the times specified in exhibits thereto annexed. the books of the plaintiffs and their agents, and were made part of the statement. The grounds of demurrer were— 1. That statement does not contain specific averments of facts to constitute a good cause of action. 2. That it contains no averment that the items of work done or materials furnished are correct, just or reasonable. agents do not charge defendant nor aver that they 3. That the book entries of plaintiffs and alleged are so charged. 4. That there is no averment that plaintiffs have paid the sums alleged to be due to others. Thomas Ridgway, for defendant. "Where the structure of a building is so completely changed that in common parlance it may b. of the Rules of Court. If the claim is based The statement is not in accordance with sec. 126 properly be called a new building or re-building, it comes within the lien law. This is sometimes on which the implication of law arises. on a quantum meruit, the facts should be set forth difficult to decide, and then it must be left to the jury. Under the evidence here a Court might defendant's express request," is not sufficiently It has been decreed that the allegation, "At have decided that it is a case of a building erected within the meaning of the lien law, and not to have ordered a non-suit": Armstrong v. Ware, 20 Pa. 520. definite. Jones v. Rocket, 4 Pa. C. C. 480. Doriot v. Hagemann, 21 WEEKLY NOTES, 556. "It is but fair that the building should present Under the testimony in this case, it should have been submitted to a jury for the jury to determine whether from the evidence the building was Byrne v. Hayden, 124 Pa. 170. The statement should aver that the sub-agents have been paid by plaintiffs. Thomas James Meagher, for plaintiffs. THE COURT-Demurrer sustained with leave to so changed that it might properly have been call-amend. W. W. W. |