Bassett v. Hawk
| Decision Date | 03 January 1888 |
| Docket Number | 209,218 |
| Citation | 11 A. 802,118 Pa. 94 |
| Parties | A. E. BASSETT v. SIMON HAWK |
| Court | Pennsylvania Supreme Court |
Argued October 14, 1887
ERROR TO THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY.
Nos 209, 218, October Term 1887, Sup. Ct.; court below, No. 51 June Term 1882, C.P.
This was an action of ejectment by A. E. Bassett against Simon Hawk for a parcel of land in South Buffalo township containing twenty-five acres, more or less, brought March 23 1882. The plea was not guilty. A former judgment, for the defendant, was reversed in this court with a venire de novo, and is reported in 114 Pa. 502.
At the second trial, on March 24, 1877, it was made to appear that Columbus McGinley died on April 14, 1843, seized in fee of and residing upon a tract of about one hundred acres, including the land in dispute, and leaving a will, duly admitted to probate on April 24, 1844, containing the following provision:
The farm on which I live, in Buffalo township aforesaid, I give and bequeath the one half of the same to my daughter, Nancy Clark, being the end next William Morrison, and adjoining lands of William Todds and George Keener, Sen., with the buildings and orchard; the balance of the land, or the other half of said tract, I will to my son, Daniel McGinley, to his use as long as he shall live, and to his legal heirs, if he have any, at his death; and if my son, Daniel McGinley, do not have any legal heirs at his death, then, and in that case, this part of the farm aforesaid which is not devised above to my daughter, Nancy Clark, I will it to be given to my grandchildren, Charlotte Clark, Mary Clark and Columbus Clark.
On August 16, 1850, John Clark and Nancy, his wife, and the daughter of the testator, who had been occupying the improved part of said farm since the testator's death, joined in an article of agreement with Daniel McGinley, which, reciting that claims had been entered in the Common Pleas as liens against the land of which the testator had died seized, and that suit had been brought by John and Nancy Clark against said Daniel, provided that the said suit should be discontinued; and "the said Daniel McGinley, for himself, his heirs and assigns, sells, transfers and releases forever to the said John Clark and Nancy, his wife, the following described piece or parcel of land above described in fee, so far as he has any interest therein, to wit, beginning . . . estimated at thirty-six acres, more or less;" and John and Nancy Clark conveyed and released to Daniel McGinley all that remained of the tract devised in said will. Mr. and Mrs. Clark then went into possession of the thirty-six acre parcel, which embraced the land in dispute, and remained thereon till January 4, 1855, when they conveyed the same to Simon Hawk, the defendant, who went into possession, paid taxes and made improvements.
Of the grandchildren to whom the devise in said will was made, all of them children of said Nancy Clark by a first husband, Columbus died in 1852, leaving his mother to survive him, still living; Mary, the wife of William McCain, died September 29, 1857, leaving a son, Frank McCain, still living; Charlotte, who had become the wife of Jacob Forcade, survived them; Daniel McGinley died May 12, 1873, without lawful children.
Jacob Forcade died February 14, 1876, and on January 21, 1881, Charlotte Forcade conveyed the parcel devised in said will to Daniel McGinley to M. L. A. McAlister, who conveyed to J. F. Jewell, who on March 10, 1882, conveyed the land in dispute to A. E. Bassett, the plaintiff.
The court, NEALE, P.J., charged the jury and answered the points presented, as follows:
This action is brought by the present plaintiff for the recovery of twenty-five acres of land, more or less, situate in South Buffalo township, in this county, according to the boundaries as described in the praecipe which has been read in evidence in your hearing. It may be that the praecipe calling for only twenty-five acres of the land, might confine the plaintiff in any verdict that he would recover, to the twenty-five acres; but it is somewhat in doubt whether that would be the case or not, as clearly a part of the Hawk land lies north of the division line of the original Colum. McGinley tract, and there is no title shown in the plaintiff for any of the land lying north of that line; therefore, in order to meet that, we have framed a verdict which if you find the fact as we may indicate to you, will be your verdict. It is, of course, for the jury to determine upon the facts in the case, their verdict, whatever it may be.
Colum. McGinley, it seems, was seized of an estate in fee amounting to about one hundred acres of land, and died sometime in 1843 or 1844, having first made his last will and testament. By that last will and testament he devised his tract of land to his two children. To the one he gave one-half; that is, to his daughter he gave one-half of the tract in fee, that is, the half lying north of the division line of this tract; and to the son was devised the other half part of the tract to himself for life, and in case he left any legal heirs, to them, with the additional clause, that in case he died without legal heirs, then his half was at the time of making the will, devised to the three children then living, of Nancy Clark, the sister of Daniel McGinley, who was then married and had three children in full life.
[Upon the death of Colum. McGinley, this estate vested in Daniel McGinley as the life tenant, or as the tenant in fee, if he afterwards had legal heirs. In default of the legal heirs, it vested in the three children, the persons named in the will, as the devisees of that part or interest in the estate.
Daniel McGinley, it appears from the evidence, died in the year 1873, leaving no legal heirs, or children, as we interpret the meaning of that will to be. The estate, so far as that piece of land is concerned, devised to Daniel, vested at the death of old Colum. McGinley in Daniel for life, and at his death, in the three children of Nancy Clark. Their interest became vested, but it was not capable of being reduced to possession so far as those three children were concerned, until after the death of Daniel McGinley. And only then, upon the contingency that he should die without legal heirs, which contingency actually took place, as he appears to have died without having left any children at all.
Then, the estate having vested in the three children at the time of the death of old Colum. McGinley, the original testator, we hold that it was a vested estate so far as those three children were concerned excepting as to the possession. They had no right of entry, no right of immediate possession, in fact, no right of possession until Daniel McGinley died, unless it would be through Daniel McGinley himself. He might have given them the right, or surrendered his right of life possession to those three children. The three children of Nancy Clark as named in the will, having then taken an interest in that estate, they would be entitled now, or such heirs as they may have, to recover that part of the land as devised to Daniel under the will of Colum. McGinley. And, therefore, in considering the right of the plaintiff in this present action to recover, you have to confine yourselves to what title he had, or what title he now claims upon.
It is clear that he possesses, so far as the court can understand it, the interest or title of Charlotte Forcade in that particular piece of land, and therefore, there can be no doubt about his right to recover the one undivided one-third part of this piece of land.
But Columbus Clark was living, so far as the testimony shows, after the death of Colum. McGinley, the original testator, and therefore, by virtue of the will he had a right to the one undivided third part of the land so devised, without having the right of possession until the death of Daniel McGinley, in case Daniel McGinley died without leaving legal heirs, or issue. You will have to consider as to the interest of Columbus Clark, where did it go?
Under the intestate laws of the commonwealth of Pennsylvania, where a child, being seized of an estate or being heir to an estate or entitled to it, dies being a minor, the interest of that particular child or heir goes to the parents of the child -- to the father, and if the father be dead, to the mother. Now that estate is outstanding, so far as any division is concerned. Columbus Clark is not shown to have parted with his interest in any way, and his interest would therefore go to his mother during life, and if she has made a conveyance of her interest in that land, that conveyance would include the interest which she might have derived, either before or subsequent to the death of Columbus Clark, her son, which would pass to the grantee under her deed, and therefore, the life interest vested in Simon Hawk to the estate of Columbus Clark, and if you find the facts as we have stated, to be so, that disposes of that two third interest.
As to the other child of Mary Clark, who afterwards married McCain who appears to be dead, she having left a child, her interest descends to her child. She having died subsequent to the death of Colum. McGinley, the testator, her interest descends to her heirs, and as we find they have not in any way joined in the deed to the present plaintiff, that interest is still outstanding and the plaintiff can only recover upon title vested in himself; he cannot where the title is outstanding in another, he must show good title in himself; no difference whether this defendant has that outstanding title or not, he is only entitled to recover so far as he shows a right to recover. If you find the fact as we have stated to you, and we believe that those are the facts...
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