Breinig v. Smith

• Citation: 110 A. 285,267 Pa. 207
• Decision Date: 19 April 1920
• Docket Number: 247
• Parties: Breinig v. Smith et al., Appellants
• Court: United States State Supreme Court of Pennsylvania

110 A. 285

267 Pa. 207

Breinig v. Smith et al., Appellants

No. 247

Supreme Court of Pennsylvania

April 19, 1920

Argued March 10, 1920

Appeal, No. 247, Jan. T., 1920, by defendants, from judgment of C.P. Northampton Co., Nov. T., 1919, No. 82, for plaintiff, on case stated, in suit of Joseph S. G. Breinig v Daniel A. Smith and Julia L. Smith. Affirmed.

Case-stated to determine marketability of real estate. Before STEWART P.J.

The opinion of the Supreme Court states the facts.

The court entered judgment for plaintiff on the case-stated. Defendant appealed.

Error assigned was entry of judgment for plaintiff.

The assignment of error is overruled and the judgment is affirmed.

William H. Schneller, with him William H. Glace, for appellants. -- Joseph S. G. Breinig took only a life estate and not an estate in fee simple under the will: Cuthrie's App., 37 Pa. 1; Yarnall's App., 70 Pa. 335; Doebler's App., 64 Pa. 1; Grimes v. Shirk, 169 Pa. 74; Ackerman v. Ackerman, 34 Pa.Super. 162; Cox v. Sims, 125 Pa. 522; Kemp v. Reinhard, 228 Pa. 143.

The will created a spendthrift trust: Fisher v. Taylor, 2 Rawle 36; Xander v. Easton Trust Co., 217 Pa. 485; Winthrop Co. v. Clinton, 196 Pa. 472; Goe's Est., 146 Pa. 431; Hahn v. Hutchinson, 159 Pa. 133; Ehrisman v. Sener, 162 Pa. 577; Kaufman v. Burgert, 195 Pa. 274; Arnold v. Muhlenburg College, 227 Pa. 321.

The case is not res adjudicata: Pennebaker v. Parker, 33 Pa.Super. 458; Macon v. Scandinavian Belting Co., 264 Pa. 384.

Smith, Paff & Laub and Thomas D. Danner, for appellee. -- The judgment of the Superior Court in Breinig v. Oldt, 45 Pa.Super. 629, unappealed from, is binding on the Supreme Court as a rule of property in this appeal involving the marketability to a portion of the same property devised to the same devisee by the same will: Kraemer v. Guarantee T. & S. Dep. Co., 173 Pa. 416; Buffington v. Summit Branch R.R., 74 Pa. 162; Devine's Est., 199 Pa. 250; Bolton v. Hey, 168 Pa. 418; Menges v. Dentler, 33 Pa. 495; Brenner v. Moyer, 98 Pa. 274; Bright v. Esterly, 199 Pa. 88.

Plaintiff took a fee: Hileman v. Bouslough, 13 Pa. 344; McGregor v. Davidson, 14 Pa.Super. 231; Seybert v. Hibbert, 5 Pa. Superior Ct. 537; Sheet's Est., 52 Pa. 257; Physick's App., 50 Pa. 128; Guthrie's App., 37 Pa. 1; Curtis v. Longstreth, 44 Pa. 297; Nice's App., 50 Pa. 143.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

This is an appeal by defendants from a judgment for plaintiff on a case-stated, to test the title of the latter in certain real estate, passing to him under the will of his father, Simon Breinig, who died January 6, 1906.

In Breinig v. Oldt, 45 Pa.Super. 629, an elaborate opinion by President Judge SCOTT, of the Northampton Common Pleas, determining that Joseph S. G. Breinig takes a fee-simple in all of his father's real estate, is adopted per curiam; and the court below states counsel admitted at the trial of the present case that it was an attempt to reverse the prior decision.

The argument is made that Breinig v. Oldt is not res adjudicata of the point at issue, because different parties from those at bar were there involved; and it is contended that the decision, being by a tribunal of subordinate appellate jurisdiction, is not within the rule of stare decisis so far as this court is concerned. Both of these positions are technically correct (see State Hospital for Crim. Insane v. Consolidated Water Supply Co., 267 Pa. 29); but proceedings to secure advisory judgments are not favorites of the law in Pennsylvania. When a decision of the Superior Court has already been obtained upon a definite point, involving the construction of a will, and no manifest error appears therein, we do not feel called upon to, and will not, discuss at length a second amicable action avowedly brought to get our opinion on the same matter, particularly where, as here, the appeal raises no new question nor any issue which is of importance to others than the parties immediately concerned: see Kraemer v. Guarantee Trust, etc., Co., 173 Pa. 416.

The will provides as follows: "I give and devise unto my son, Joseph G. Breinig, my real estate, wheresoever the same be situate . . .; to have and to hold the same . . . for and during the period of his natural life, the said life estate not to be subject to any debts, engagements or liabilities which he may contract in future or may have contracted in the past. Upon the decease of my said son Joseph G. Breinig the principal . . . shall vest absolutely in the heirs of the body of my said son share and share alike for ever. And in case of the death of any one or more of said heirs of the body of my son, prior to said son's death, such one share or shares shall vest in their respective issue or heirs of their respective bodies."

We agree with the court below that, under the abovequoted testamentary provision, the plaintiff in this case is vested with a fee-simple title. "It may be that the testator's particular intent was to give the first devisee not more than a life estate, but it is equally clear that his general intent was to constitute such devisee a source of inheritable succession; the latter, therefore, took a fee under the rule in Shelley's Case. . . . The intent to make the life tenant a source of inheritable succession is clear, because the technical words used ['heirs of the body'] demonstrate that design, and there is nothing within the four corners of the will sufficient to rebut it. . . . If in a devise the word 'heirs' [or the...