Conklin v. Bush

• Decision Date: 17 July 1848
• Citation: 8 Pa. 514
• Parties: CONKLIN <I>v.</I> BUSH.
• Court: Pennsylvania Supreme Court

8 Pa. 514

CONKLIN v. BUSH.

Supreme Court of Pennsylvania.

July 10, 1848.

July 17, 1848.

IN error from the Common Pleas of Wayne county.

July 10.

Wheeler, for plaintiff in error.

The court declined hearing Collins, contrà.

July 17. COULTER, J.

The deed from Simeon Bush, the elder, to his son Eli C. Bush, and also one from the same to his son James C. Bush, were properly admitted in evidence. Although the deed was not signed by Hannah, the wife of Simeon, and although her acknowledgment before the justice was defective in substance, yet these circumstances were important only as they affected the widow's right of dower. The deeds on their face were good against Simeon Bush, the elder, and were of controlling effect in this cause, inasmuch as they established the character of the seisin and possession of the defendants, and manifested the right under which they claimed to hold the land described in the narr., adverse to all other persons. This disposes of the first error assigned. The second is that the court erred in saying that the deed was valid, and that the will could not be taken into consideration. The will was made on the 8th August, 1826, and the deeds were executed and delivered in the year 1833, and recorded in March of the same year. The deeds were, therefore, a revocation of the will pro tanto: and as the devise in the will was that the wife should have the profits of these lands during life, or widowhood, it was annulled by the deeds. This part of the case, therefore, depends upon the validity of the deeds. It is clear that the deeds did not bar the widow of her right of dower in these lands if she had asserted it during her life by the proper mode. What effect that circumstance has on the cause will be considered in a subsequent part of this opinion. But in all other respects the deeds were good and available to transfer the title to Eli and James. The consideration expressed in each of the deeds is $1,000, and an engagement under the penalty of $1,900, to keep and maintain in all respects the said Simeon, and Hannah, his wife, during their joint lives, and the life of the survivor — each son to keep and maintain them or provide for their maintenance equally. Simeon lived between three and four years after the execution of the deeds, and Hannah, his widow, survived him until 1844. During their joint lives they were maintained by their sons, and the widow was maintained several years after the death of her husband by these two sons; but for some reason, not apparent on the paper-book, she left them, and lived among her other children, but before her death returned. It does not appear that she ever complained, or ever made any demand from the two sons respecting her maintenance which they refused to comply with. She never made any demand of dower from her sons, nor alleged to any other person that she was entitled to dower. There never was a refusal, on the part of the sons, or either of them, to fulfil that part of the consideration of the deeds which relates to the support of Simeon and wife, and if there had been, they could have been compelled to it by action. To each deed was appended a receipt for the money consideration. The deed was therefore valid, being made for valuable consideration, and not impeached for fraud. The grantor lived three or four years after its execution, and until his death acknowledged its validity, and his widow never during her life impeached it. The deed, under all these circumstances, was valid, and passed the estate of Simeon to his sons Eli and John.

After the death of the widow, her administrator brings this action of account render to recover the profits of the estate under the will, which, he alleges, defendants received as bailiffs of the widow — and in the second and third counts, alleges a tenancy in common: and avers that the widow is entitled to one-third of the premises, or rents and profits, and that defendants were her receivers. In relation to the...