Darlington v. Darlington

• Decision Date: 26 February 1894
• Docket Number: 324
• Citation: 28 A. 503,160 Pa. 65
• Parties: Darlington v. Darlington, Appellant
• Court: Pennsylvania Supreme Court

28 A. 503

160 Pa. 65

Darlington v. Darlington, Appellant

No. 324

Supreme Court of Pennsylvania

February 26, 1894

Argued February 5, 1894

Appeal, No. 324, Jan. T., 1893, by defendant, Joseph H Darlington, from judgment of C.P. Chester Co., Aug. T., 1892 No. 4, on verdict for plaintiff, Lydia Ann Darlington. Affirmed.

Ejectment. Before WADDELL, P.J.

At the trial, it appeared that plaintiff claimed title under the will of her husband, Job G. Darlington.

The material portions of the will were as follows:

"1st. I order and direct that all my just debts and funeral expenses be paid by my executors hereafter named as soon as it can conveniently be done after my decease.

"2d. And in order to enable them to pay the same, I do authorize and empower them to sell all my real and personal estate within one year after my decease, either at public or private sale as they may think best and make and execute a deed or deeds to the purchaser or purchasers thereof in fee, for the said real estate.

"3d. I do give and bequeath to my grandson, Joseph H. Hilton, the sum of three hundred dollars, I do give and bequeath to my daughter Phebe Ann Jones and to my granddaughter Della A. Jones five dollars each, and to my daughter Dellilah Shird the sum of fifty dollars ($50).

"4. Then all the residue or remainder of my estate I do give and bequeath to my wife Lydia Ann Darlington to her heirs and assigns.

"Lastly, I do hereby make, constitute and appoint my wife Lydia Ann Darlington and my grandson Joseph H. Hilton executors of this my last will and testament with full power to carry out the same."

Defendant offered to show that, after death of Job G. Darlington, plaintiff agreed with defendant that the property now in dispute, or its proceeds, was to belong to defendant, and that the property at Oxford, or its proceeds, were to go to her, or the estate of her husband, coming to her under the will. Objected to as making title by parol. Objection sustained and exceptions. [5-8]

Defendant then offered to prove that, prior to the time the agreement between Jos. H. Hilton, executor, and Jos. H. Darlington, dated Feb. 14, 1891, was made, and after the death of Job G. Darlington, plaintiff and defendant had a discussion about the validity of a certain $7,000 note, and that they agreed to settle all controversy between them by allowing Joseph to have the proceeds of this farm now in dispute, and the widow was to receive the Oxford farm. Same objection as before. Objection sustained and exceptions. [9]

Defendant then offered in evidence the agreement of Feb. 14, 1891, to be followed by testimony that plaintiff assented to this agreement, consented to it, and it was done with her authority. Objected to. Objection sustained and bill sealed. [10]

The agreement was as follows:

"Whereas, letters testamentary on the estate of Caleb Darlington, were duly granted to Job G. Darlington, and he being now deceased, it is necessary to obtain letters of administration with the will annexed.

"And Whereas, It is alleged by Joseph H. Darlington, that when the debts of Caleb Darlington, deceased, are all paid, they will consume all of his estate, real and personal, and that there will, in fact, not be sufficient estate to pay all of his debts.

"Now, for a valuable consideration, it is agreed by and between Joseph H. Hilton, executor of Job G. Darlington, and Joseph H. Darlington, that the letters of administration with the will annexed, shall be granted on the estate of Caleb Darlington, to J. Carroll Hayes, of West Chester, who shall proceed at once to sell all the real estate of said Caleb Darlington, by order of the orphans' court, for the payment of debts. And that after deducting the expenses attending the administration and sale of the real estate, of said Caleb Darlington, located near Oxford borough, in East Nottingham township, said administrator shall pay over to said Joseph H. Hilton, executor as aforesaid, the net balance of the proceeds of said real estate, which shall be in full settlement and payment of all claims and demands of the estate of Job G. Darlington against the estate of Caleb Darlington, deceased." Signed by the parties.

Binding instructions for plaintiff were given. [1, 2]

Defendant's points were, among others, as follows:

"2. No evidence having been presented by the plaintiff of any acceptance of the real estate, or of any election to take the same, the verdict must be for the defendant. Answer: As between these parties we cannot say that that is necessary, and the second point is therefore disaffirmed." [4]

3. Request for binding instructions. Refused. [3]

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-4) instructions; (5-10) rulings on evidence; quoting instructions, bills of exceptions and evidence.

Judgment affirmed.

Wm. M. Hayes, J. Carroll Hayes with him, for appellant. -- An equitable conversion was wrought by the terms of the will, and hence plaintiff could not maintain an action of ejectment: Silverthorn v. McKinster, 12 Pa. 72; Adams's Est., 148 Pa. 398; Gantert's Petition, 136 N.Y. 106; 2 Rhone's O.C. Pr., p. 182; Fahnestock v. Fahnestock, 152 Pa. 56; Jones v. Caldwell, 97 Pa. 42; Roland v. Miller, 100 Pa. 47; Lehman's Ap., 105 Pa. 141; 3 Trickett on Liens, § 202; Paist's Est., 1 Mona. 523; Marshall's Est., 147 Pa. 77; Dundas's Ap., 64 Pa. 325; Philadelphia's Ap., 112 Pa. 470; Evans's Ap., 63 Pa. 183; Allison v. Wilson, 13 S. & R. 332; Miller v. Meetch, 8 Pa. 417; Morrow v. Brenizer, 2 Rawle, 185; Allison v. Kurtz, 2 Watts, 185.

In our case there has been no election to take the land unconverted: Beatty v. Byers, 18 Pa. 105; Miller v. Meetch, 8 Pa. 417; Evans's Ap., 63 Pa. 183.

The land being therefore regarded in equity as personalty, it could be dealt with by parol: Mellon v. Reed, 123 Pa. 17; Reed v. Mellor, 122 Pa. 635; 3 Trickett on Liens, § 201.

Another ground for the admission of this evidence is upon the principle of estoppel: 2 Herman on Estoppel, p. 1191; Gas Co. v. Cook, 123 Pa. 170; Lewis v. Baker, 151 Pa. 529.

In this case the executor of Job G. Darlington was but carrying out his testator's wishes in making this written agreement: McNair's Ap., 4 R. 148.

The written agreement should be construed as a contract of sale: McMahan v. Davis, 19 Pa. 354; Callen v. Hilty, 14 Pa. 286; Williamson v. McClure, 37 Pa. 402; Allison's Ap., 77 Pa. 221; Coal Co. v. Harlan, 27 Pa. 429; Pratt v. Campbell, 24 Pa. 184.

This was a family compromise of doubtful rights, and, as such, favored by the law: Chamberlain v. McClurg, 8 W. & S. 31; Cavode v. McKelvey, Add. 56; Chahoon v. Hollenback, 16 S. & R. 433; Brown v. Sloan, 6 Watts, 421; Perkins v. Gay, 3 S. & R. 327; Rice v. Bixler, 1 W. & S. 445; Good v. Herr, 7 W. & S. 254; Shartel's Ap., 64 Pa. 25; Bierer's Ap., 92 Pa. 265; Bruner's Ap., 57 Pa. 53; McNair's Ap., 4 Rawle, 148.

Executors have by law the power of a judicious compromise with reference to the estate: 7 A. & E. Ency. L., p. 285; 3 Rhone's O.C. Pr. § 116; Bruner's Ap., 57 Pa. 46; Pusey v. Clemson, 9 S. & R. 204; Billington's Ap., 3 Rawle, 57; Dougherty v. Stephenson, 20 Pa. 210; DeHaven v. Williams, 80 Pa. 482; Hufnagle's Est., 23 Pitts. L.J. 121; Parker v. Steamboat Co., 23 A. R. 102; Heisler v. Sharp, 44 N.J. Eq. 172; Rogers v. Hand, 39 N.J. 270; Chouteau v. Suydam, 21 N.Y. 179; Auken v. Keiner, 9 N.Y. 669.

The executor could effect a reasonable compromise affecting the real estate, and convey a good title as against residuary legatees: Bruner's Ap., 57 Pa. 46.

Alfred P. Reid, for appellee, not heard. -- There was no conversion of this land by the will of Job G. Darlington, and the appellee took the same as land: Hunt & Lehman's Ap., 105 Pa. 141; Swift's Ap., 87 Pa. 503; Bisph. Eq. § 312; Perot's Ap., 102 Pa. 256; Wilkinson v. Buist, 124 Pa. 261; Fidler v. Lash, 125 Pa. 93; Moores v. Moores, 41 N.J.L. 440; Chew v. Nicklin, 45 Pa. 84; Nagle's Ap., 13 Pa. 260; Sheridan v. Sheridan, 136 Pa. 14; Peterson's Ap., 88 Pa. 397; Bleight v. Bank, 10 Pa. 131; Brown v. Dysinger, 1 Rawle, 408; Cobel v. Cobel, 8 Pa. 342; 2 Wms. Exrs. 817; Anewalt's Ap., 42 Pa. 414; Henry v. McCloskey, 9 Watts, 145; Luffberry's Ap., 125 Pa. 513; Jackson v. Jansen, 6 Johns. 73.

This action was an election, if one was necessary: 2 Jarm. Wills, 189.

As appellee took the property as land by force of the will, the written agreement of the executor could not affect her rights, and was therefore not admissible as evidence against her in this action; and the statute of frauds was a bar to the admission of any parol evidence to affect her title.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

To maintain the issue on her part, the plaintiff gave in evidence, inter alia, deed of March 28, 1805, from Benjamin Hawley and wife, to Joseph Darlington for the land in controversy, being part of a larger tract patented to said grantor; also will of Joseph Darlington, probated May 12, 1821, devising same to his wife for life, remainder in fee to his children, of whom his two sons Job G. and Caleb were the survivors; also, deed of February 5, 1867, from Job G. Darlington and wife to his brother Caleb, for his undivided interest in same; also, will of Caleb Darlington, probated December 11, 1890, by the residuary clause of which he devised same land as follows: "All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to my brother Job G. Darlington, and to his heirs forever;" also, will of Job G. Darlington, dated December 13, 1890, and probated February 13, 1891, wherein he directed, 1st, that all his just debts and funeral expenses should be paid by his executors; and, 2d, "in order to...