David Young's Estate
| Decision Date | 18 March 1895 |
| Docket Number | 216 |
| Citation | 166 Pa. 645,31 A. 373 |
| Parties | David Young's Estate. David Young's Appeal |
| Court | Pennsylvania Supreme Court |
Argued January 28, 1895
Appeal, No. 216 July T., 1894, by David Young, from decree of O.C. Phila. Co., Jan. T., 1884, No. 137, dismissing petition for citation to account in estate of David Young, deceased. Affirmed.
Petition for citation upon Henry K. Fox, executor of Elizabeth Young deceased, executrix of David Young, deceased, to file a supplemental account of said Elizabeth Young as executrix of the estate of David Young, deceased.
From the record it appeared that on January 15, 1879, David Young and Elizabeth Young conveyed a tract of land to Charles E Johnson for the consideration of $12,000. Mrs. Young insisted before executing the deed, that she should be paid $3,000, to which her husband finally agreed. Part of the purchase money was used in paying off an existing mortgage; part in paying off liens for taxes, etc. A purchase money mortgage for six thousand dollars ($6,000) was made to David Young; and the balance, something over two thousand dollars ($2,000), was paid to David Young in cash. At the time of settlement, David Young assigned the mortgage for $6,000 to Henry K. Fox, who immediately re-assigned it to David Young and Elizabeth Young, his wife, upon the following terms: "To have and to hold to the said David Young and Elizabeth Young, his wife, their heirs and assigns forever in equal moieties or one-half parts as tenants in common; that is to say, one full equal moiety or one-half part to the said David Young, his heirs, executors and assigns and one full equal moiety or one-half part to the said Elizabeth Young, her heirs, executors and assigns."
This mortgage for $6,000 was made payable in five years. David Young died on March 20, 1882. It was extended by Elizabeth Young, and was finally paid off and satisfied by her in January, 1886. David Young left a will by which he made his wife his executrix, and gave and devised all of his property to her during her life or widowhood, with remainder to his children, according to the intestate law. Besides his wife, he left surviving him a daughter, Annie Simons, and a grandson, David Young, the petitioner, who was a son of a deceased son. At the time of David Young's death, the grandson was between sixteen and seventeen years old, having been born December 3, 1865. He testified that he had been told of the existence of this mortgage by his grandfather, and that he also heard of it from his grandmother in her lifetime. When David Young died he had on deposit with his agents about $700, all that was left of the cash that had been paid him for the property in January, 1879. It was proved that the rest had been used by David Young for his personal expenses. His widow, who was made executrix, filed her inventory in due time, which included the cash item of $700 and some household effects, but made no mention of the mortgage. She filed her first and only account in January, 1884, in which she charged herself with the amount of the inventory and appraisement, and showed a net balance of $229.38, which was awarded to her for life.
The appellant, David Young, came of age on December 3, 1886. His grandmother, Elizabeth Young, died on December 9, 1892, six years afterward, leaving a will appointing Henry K. Fox executor, and in which she made various bequests and legacies. The executor filed his account in the orphans' court in February, 1894; whereupon the appellant filed his petition to compel the executor to file an account of Elizabeth Young as executrix of David Young, and to account for the one half of the mortgage of $6,000. The executor demurred to this petition on the ground that it was really a petition of review, and, being such, was barred by the lapse of time since the confirmation of the account of Elizabeth Young. The demurrer was overruled by the court, and leave given to the respondent to answer.
The respondent, having filed his answer, the matter was referred to an examiner to take testimony, and, upon his report having been filed, the matter was argued upon the petition, answer and testimony. In the court below, the respondent relied principally upon the claim that, upon the death of David Young, his widow became entitled to the whole mortgage by right of survivorship; at the same time, however, it was insisted that the petitioner had lost all right to any remedy by reason of his laches. The court, in an opinion by Hanna, P.J., held that, Elizabeth Young having survived her husband, the whole mortgage became vested in her, and that neither she nor her executor need account for it.
The court entered a decree dismissing the petition. David Young appealed.
Error assigned among others was decree dismissing petition.
For this reason the petition was rightly dismissed and the decree of the orphans' court is affirmed.
W. H. Woodward, for appellant. -- The assignment of the mortgage created an estate in severalty in David Young in one half of the mortgage: Coke on Littleton, 187; Stuckey v. Keefe's Exrs., 26 Pa. 397; Thomas Coke, 855; Neave v. Edwards, 2 Yeates, 462; 2 Bl. Com. 182; 2 Cruise's Digest, 492; Preston on Estates, 131; 2 Preston on Abst. 41; 1 Preston on Est. 132; 4 Kent, 363; 1 Reed's Bl. 470; 1 Wash. on Real Prop. 426; 4 Kent's Com. 363; 9 Am. & Eng. Ency. of Law, 851; Diver v. Diver, 56 Pa. 106; Gillan's Exrs. v. Dixon, 65 Pa. 395; Bramberry's Est., 156 Pa. 628; Donnelly's Est., 7 Co. Ct. 196; McDermott v. French, 15 N.J. Eq. 80; Buttlar v. Rosenblath, 8 Cent. Rep. 353; Fladung v. Rose, 58 Md. 13; Marburg v. Cole, 49 Md. 402; Dias & Burn v. Glover, 1 Hoff. Ch. 71; Meeker v. Wright, 76 N.Y. 267; Bertles v. Nunan, 92 N.Y. 152; Bramberry's Ap., 156 Pa. 628; Hicks v. Cochran, 4 Edwards' Ch. Rep. 114; 2 Prest. on Abst. Tit. 41; act of April 11, 1848, sec. 6, P.L. 536; act of April 15, 1751, sec. 22, P.L. 675; act of April 11, 1856, sec. 4, P.L. 315; June 2, 1871, sec. 1, P.L. 283; act of February 1872, sec. 1, P.L. 21; act of April 3, 1872, sec. 1, P.L. 35; act of March 18, 1875, sec. 1, P.L. 24; act of May 25, 1878, sec. 1, P.L. 152; act of April 9, 1879, sec. 1, P.L. 16; act of June 3, 1887, sec. 1, P.L. 332; act of June 8, 1893, P.L. 344; Taylor v. Birmingham, 29 Pa. 308.
David Wallerstein, Wm. Henry Fox with him, for appellee. -- The assignment created an estate by entireties: Lodge v. Hamilton, 2 S. & R. 493; Donelley Est., 37 Leg. Int. 130; Taylor v. Birmingham, 29 Pa. 308; McKinney v. Hamilton, 51 Pa. 63; Johnson v. Hart, 6 W. & S. 319; Robb v. Beaver, 8 W. & S. 107; Fairchild v. Chastelleux, 1 Pa. 176; Slaymaker v. The Bank, 10 Pa. 373; Auman v. Auman, 21 Pa. 343; Stuckey v. Keefe's Ex., 26 Pa. 397; Martin v. Jackson, 27 Pa. 504; Bates v. Seely, 46 Pa. 248; Diver v. Diver, 56 Pa. 106; French v. Mehan, 56 Pa. 286; McCurdy v. Canning, 64 Pa. 39; Gillan's Ex. v. Dixon, 65 Pa. 395; Holcomb v. Savings Bank, 92 Pa. 338; Fleck v. Zillhaver, 117 Pa. 213; Bramberry's Ap., 156 Pa. 628.
Appellant's laches defeats his right to relief.
Before GREEN, WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.
It appears from the petition and answer that David Young was in 1879 the owner of certain real estate in Philadelphia. He sold it in that year to C. E. Johnson for twelve thousand dollars payable one half in cash and one half in mortgage secured on the premises. Elizabeth Young, the wife of David refused to join her husband in executing a deed to the purchaser unless she was paid three thousand dollars out of the purchase money. Her husband finally agreed to this, the deed was executed and delivered to the purchaser, and the money and the mortgage turned over to Young. But some four thousand dollars of the money seems to have been required to pay liens upon the land sold and it became necessary to pay Mrs. Young out of the mortgage. In order to do this Young assigned the mortgage to H. K. Fox, his attorney, who immediately reassigned it to David Young and Elizabeth Young his wife, "to have and to hold to the said David Young and Elizabeth Young his wife, their heirs, assigns forever, in equal moieties or one half parts as tenants in common; that is to say, one full equal moiety or one half part unto the said David Young, his heirs, executors and assigns, and the other full, equal moiety or one half part to Elizabeth Young, her heirs, executors and assigns." Our first question is over the effect of this assignment by Fox to David Young and Elizabeth Young. The orphans' court held that it vested the title to the mortgage in the husband and wife as tenants by the entireties so that upon the death of either, the survivor became the owner in severalty of the entire mortgage. The general rule that a conveyance to husband and wife as such whether they are described in the deed as tenants in common or as joint tenants, vests in them an estate as tenants by entireties is well settled. The reason of the rule is clearly stated by Blackstone in the second volume of his Commentaries on page 182 thus, "If an estate in fee be given to a man and his wife they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties but both are seized of the entirety, per tout et per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." This is the rule in this state. In Johnson v. Hart, 6 W. & S. 319, the conveyance was in express words to the husband and wife as tenants in common, but we held, in accordance with the rule just stated, that they were tenants by entireties. Being one person in law a conveyance to them as...
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