Barber v. Pittsburgh Ry Co

• Decision Date: 01 March 1897
• Docket Number: No. 341,341
• Citation: 17 S.Ct. 488,166 U.S. 83,41 L.Ed. 925
• Parties: BARBER et al. v. PITTSBURGH, F. W. & C. RY. CO. et al
• Court: U.S. Supreme Court

166 U.S. 83

17 S.Ct. 488

41 L.Ed. 925

BARBER et al.

v PITTSBURGH, F. W. & C. RY. CO. et al.

No. 341.

March 1, 1897.

This was a certificate from the circuit court of appeals for the Third circuit of questions on which it desired the instruction of this court, and, as originally made, was (omitting the words printed in brackets below) as follows:

'This was an action of ejectment, and comes before this court on a writ of error to the United States circuit court for the Western district of Pennsylvania, which entered judgment for the defendants.

'First. The parties to the action both claimed title to the land in controversy under the will of James S. Stevenson, deceased, dated March 11, 1831, which is in the words following, to wit:

"I, James S. Stevenson, of the city of Pittsburg, in the state of Pennsylvania, aged fifty years, on the 12th day of January, 1831, reflecting on the certainty of death, and desirous of making a distribution of my property in the event of my decease, do hereby declare this writing to be my last will and testament, made this twelfth day of March, in the year of our Lord one thousand eight hundred and thirty-one.

"I give and bequeath to Amanda Stephens, daughter of Margaret Stephens, lots 67, 68, 69, and 70, in the city of Pittsburg, in their full extent, bounded by Penn street, Wayne street, the Allegheny river, and by lot 71. Said Amanda Stephens is now five years old (born April 7, 1826). _____ Stephens and _____, his wife, the parents of Amanda's mother, live near Connellsville, in Fayette county, Pennsylvania.

"In the event of Amanda dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber, of Columbia, Penna.

"I give and bequeath to John Barber, of Columbia, and to his heirs, the lots in the city of Pittsburg numbered 71 and 72, bounded by Penn street, by lot 70, by the Allegheny river, and by lot 73.

"I give and bequeath to Mary Livingston's children the lot 74 in the city of Pittsburg. And to her unmarried sister, Eliza Stevenson, I give and bequeath the lot 73 in the city of Pittsburg, and, in the event of her death, the lot to go to her sister's children. Mary Livingston and Eliza Stevenson are daughters of the late Colonel S. Stevenson, son of Robert Stevenson, of York county, Pa.

"I give and bequeath to the sons of James Stevenson, formerly of York county, but who died in Lycoming county in 1810 or 1811, the brick and other buildings, with the ground on which they are erected, situated at the corner of Wood and Fifth streets, Pittsburg. These sons are Stephen, Manning, Reuben, Samuel, and I. Stephenson.

"All the remainder of my property to be sold, and, after paying my debts, to be divided into sixteen shares, and to be disposed of as follows: To Amanda Stephens, one share; to Mary Livingston, one share; to Eliza Stevenson, one share; to Stephen Stevenson, within named, one share; to James Wright, of Columbia, or his heirs, two shares; to John Barber, of Columbia, two shares; to Ann Elliott, formerly Ann West, now wife of Rev. Mr. Elliott, of Washington county, one share; to Jane E. Thecker, niece of the late Rev. Mr. Kerr, one-sixteenth (or one share); to the heirs of John Barber, of Columbia, two shares; to the heirs of James Wright, of Columbia, two shares; to Charles Avery J. M. Snowden, and John Thaw, to be divided equally, two shares.

"I hereby constitute and appoint the said Chares Avery, J. M. Snowden, and John Thaw, and John Barber the executors of this my will.

"Signed at Pittsburg this 11th day of March, 1831.

Jas. S. Stevenson.

"Witness:

"Geo. Ogden.

"J. S. Craft.'

'Second. That on October 16, 1831, when confined to his room by sickness [and after a dangerous illness for two weeks preceding his death], the testator [though he had theretofore signed his will] first published [the same] his will in the presence of witnesses, whom he called to attest it, and a few hours thereafter died; and this will, on October 18, 1831, was duly probated [which facts as to the time and circumstances of publication were not found by the special verdict, on which judgment was entered in the ejectment suit in the state courts of Pennsylvania].

'Third. That the said Amanda Stephens, then a child of five years of age, survived the testator, and in 1847 intermarried with Samuel Haight; that in 1848 she and her husband executed a deed, intended to bar a supposed estate tail in the land covered by the devise, which, upon the assumption that she had taken an estate tail, would have been sufficient for that purpose; that she had children by her said husband, who, as well as her husband, died in her lifetime, and that she died [never having married again] on September 21, 1891. [But she and her husband in their lifetime, and after said steps to bar the entail, conveyed in fee simple to the defendants and others the property here in dispute.]

'Fourth. That, at the date of the death of the testator, John Barber was alive, married, and had children, some of whom are plaintiffs in this action.

'Fifth. That on March 20, 1893, S. Duffield Mitchell, administrator de bonis non cum testamento annexo of James S. Stevenson, deceased, brought an action of ejectment against these defendants in the court of common pleas in and for Allegheny county, Pa., to recover the land here in controversy in which action a verdict was rendered under the direction of the court for the defendants, on which judgment was entered accordingly; that on writ of error to the supreme court of the state this judgment was affirmed. 31 Atl. 67.

'Sixth. That on February 2, 1895, a second action of ejectment for the same land was brought by the plaintiffs in this suit in the circuit court of the United States for the Western district of Pennsylvania, in which a verdict under the direction of the court was rendered for the defendants (69 Fed. 501), on which judgment was entered accordingly; to which judgment a writ of error was sued out from the circuit court of appeals of the Third circuit, being the writ of error upon which the questions now to be submitted have arisen.

'The said court of appeals, desiring the instruction of the supreme court of the United States for its proper decision of the following questions or propositions of law, respectfully certifies the same:

'First. Is the decision of the supreme court of Pennsylvania, before referred to, conclusive? If not, then.

'Second. What estate did Amanda Stephens take under the devise?'

At the suggestion of both parties, and by order of the circuit court of appeals, the certificate was afterwards amended by inserting the words above printed in brackets in the second and third paragraphs thereof; by striking out those in italics in the second paragraph; by adding to the fifth paragraph copies of the opinions delivered, in the action therein described, by Judge Ewing in the court of common pleas of Allegheny county, not reported, and therefore (omitting the preliminary statement of facts) printed in the margin,¹ and by the supreme court of Pennsylvania, as reported in 165 Pa. St. 645, 31 Atl. 67; and by adding to the sixth paragraph a copy of the opinion of the circuit court of the United States in the present case, as reported in 69 Fed. 501.

John S. Ferguson and S. Duffield Mitchell, for plaintiffs in error.

D. T. Watson and John McCleave, for defendants in error.

[Argument of Counsel from pages 88-90 intentionally omitted] Page 97

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

The real question between the parties, upon which the decision of this case must turn, is what estate Amanda Stephens took under the will of James S. Stevenson, by which he devised to her certain lots of land in Pittsburg, and further provided as follows: 'In the event of Amanda dying unmarried, or, if married, dying without offspring by her husband, then

Page 98

these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber.'

The testator duly published his will on October 16, 1831, and died on the same day, being 50 years old. At that date John Barber was alive and married, and had children, some of whom are plaintiffs in this action of ejectment. Amanda Stephens, then a child of five years of age, and so described in the will, survived the testator, and afterwards married. She and her husband executed a deed of the land, intended and sufficient to bar an estate tail therein, and afterwards conveyed the land in fee simple to the defendants and others.

The testator died, and his will took effect before the passage of the statute of Pennsylvania of April 8, 1833 (chapter 128, § 9), providing that 'all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate'; and long before the statute of April 27, 1855 (chapter 387, § 1), providing that 'whenever hereafter, by any gift, conveyance or devise, an estate in fee tail would be created according to the existing laws of this state, it shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable,' Laws Pa. 1832-33, p. 249; Laws 1855, p. 368; Purd. Dig. (12th Ed.) 2103, § 11; Id. 810, § 8.

A former action of ejectment was brought by the administrator with the will annexed of the testator against these defendants in the court of common pleas of Allegheny county, in the state of Pennsylvania, which directed a verdict and rendered judgment for the defendants, on the ground that Amanda Stephens took an estate tail, which had been duly barred, and the title conveyed to the defendants.

Upon a writ of error, that judgment was affirmed by the supreme court of...