Day v. Thompson

• Decision Date: 02 January 1912
• Docket Number: 113
• Citation: Day v. Thompson, 233 Pa. 550, 82 A. 935 (Pa. 1912)
• Parties: Day, Appellant, v. Thompson
• Court: Pennsylvania Supreme Court

82 A. 935

233 Pa. 550

Day, Appellant, v. Thompson

No. 113

Supreme Court of Pennsylvania

January 2, 1912

Argued October 13, 1911

Appeal, No. 113, Oct. T., 1911, by plaintiffs, from judgment of C.P. Washington Co., May T., 1911, No. 2, for defendant on case stated in suit of H. S. Day et al. v. Josiah V Thompson. Affirmed.

Case stated to determine marketable title to real estate. Before TAYLOR, J.

From the case stated it appeared that the plaintiffs were H. S Day and his five children who were born before the death of I. N. Day, the testator, from whom the plaintiff claimed title. The defendant was the purchaser of the coal in question from H. S. Day and his five children. Other facts appear by the opinion of the Supreme Court.

The court entered judgment for defendant. Plaintiffs appealed.

Error assigned was in entering judgment for defendant on case stated.

The judgment is affirmed.

R. W. Parkinson, Jr., for appellants, cited: Pennock v. Eagles, 102 Pa. 290; Black v. Woods, 213 Pa. 583; Ross v. Drake, 37 Pa. 373; Vance's Est., 209 Pa. 561; Carstensen's Est., 196 Pa. 325; Keller v. Lees, 176 Pa. 402; Wetherill's Est., 214 Pa. 150; Cresson's App., 76 Pa. 19.

Harry Russell Myers, for appellee, cited: Craige's App., 126 Pa. 223; McBride v. Smyth, 54 Pa. 245; Raleigh's Est., 206 Pa. 451.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

PER CURIAM:

The question presented by this appeal is whether the plaintiffs could convey a good title to all the coal under a tract of land which they held under the following devise:

"Art. 2d. I will to my son Henry S. Day the real estate known as the Dr. H. W. Blachly Farm, together with two receipts I hold, one calling for Two Thousand Dollars, the other for Sixty Dollars during his natural life, -- under the following conditions -- by paying to his mother One Hundred and Twenty Dollars semi-annually if she thinks proper to leave the farm, and Seventy Five if she remains. At his death to be divided among his living children as follows, -- Five Hundred Dollars to Mary C. Day, the remainder to be divided equally among the other children except to Arthur and Harry Forty Dollars each more than the others in lieu of two gold watches which Clinton and Howard are to have. This division is no way or manner to interfere with the legal collection of such notes as I hold against this estate."

At the date of the will Henry S. Day had five children, another child was born before the death of the testator, and two have been born since. The agreement of sale was executed by Henry S. Day and his five children who were living at the date of the will. It was held by the learned judge of the common pleas...