Garman v. Glass

• Decision Date: 11 July 1900
• Docket Number: 341
• Citation: 46 A. 923,197 Pa. 101
• Parties: Garman v. Glass
• Court: Pennsylvania Supreme Court

46 A. 923

197 Pa. 101

Garman v. Glass

No. 341

Supreme Court of Pennsylvania

July 11, 1900

Argued May 14, 1900

Appeal, No. 341, Jan. T., 1899, by defendants, from order of C.P. Lancaster Co., Jan. T., 1899, No. 24, making absolute a rule for judgment for want of a sufficient affidavit of defense, in case of John B. Garman, Administrator d.b.n.c.t.a. of Jonas Good, Jr., deceased, v. Anna B. Glass and Henry W. Glass. Reversed.

Assumpsit to recover charge on land.

Rule for judgment for want of a sufficient affidavit of defense.

The facts are stated by LIVINGSTON, P.J., as follows:

It appears from the records and papers presented to the court on the argument, that, on January 23, 1880, one Jonas Good, of Brecknock township, Lancaster county, made and executed his last will and testament, which, after his decease on March 9 1880, was on April 6, 1880, duly proven, and letters testamentary granted to Mrs. Catharine Good, his widow, she being the executrix named in said will; and in and by said will he, inter alia, gave and bequeathed as follows:

"Item I give and bequeath unto my beloved wife, Catharine Good, the use and occupation of all my real estate, consisting of a farm on which I now reside, containing fifty-four acres, more or less, and six acres and three-quarters of wood land adjoining lands of Samuel G. Musser, Elias Klemer and others, during her natural life, and from and after her decease, then I give and devise all my said real estate unto Anna B. Glass and her husband, Henry W. Glass, or to their heirs and assigns forever, at and for the sum of two thousand five hundred dollars ($2,500.00), to be paid as follows, to wit: The one-half of the net balance, after all the expenses and legal debts are paid, to be paid to John B. Garman, or to his heirs or assigns, I hereby bequeath the same to him, the said John B. Garman, one year after the death of my said wife, and the other half of said net balance I hereby bequeath to said Anna B. Glass and to her husband."

Then follows this item: "I do order, and it is my will, that in case the said Anna B. Glass, Henry W. Glass and John B. Garman, or either of them, should not be obedient to my said wife, during her natural life, I do hereby, in such case, revoke the devise and the bequest in this my last will to the said Anna B. Glass, Henry W. Glass and John B. Garman, and in such case I do hereby give the power and authority to my said wife to give, devise and bequeath the same unto whom she may prefer, the same as if it had not been devised to them."

He then appoints his wife his executrix.

Catharine Good, his widow and executrix, made and executed her last will and testament on October 12, 1889, in which, after directing that her funeral expenses and all her other just debts should be paid by her executor, she says: "Item, I give and bequeath to Henry Glass and Annie Glass, his wife, all the rest and residue of my estate, of whatever it may consist at the time of my decease, without reserve."

Of this, her will, she appointed S. G. Seifrit the executor.

After her decease, on October 8, 1897, her will was duly proven on January 24, 1898.

On January 4, 1898, S. G. Seifrit, the executor, renounced the executorship, and on the same day Henry Glass and Anna Glass, sole legatees in said will, renounced their right to administer, and requested that David G. Shrom should be appointed as administrator c.t.a.

And on January 24, 1898, the register granted letters of administration d.b.n.c.t.a., as requested, to said David G. Shrom upon the estate of Catharine Good, deceased.

And, after the decease of said Catharine Good, the executrix, John B. Garman was appointed by the register of wills of Lancaster county, Pa., administrator d.b.n.c.t.a. of said Jonas Good, Jr., deceased. And this suit, or action, is brought by him, as such administrator, to recover from Anna B. Glass and Henry W. Glass, the defendants, the sum of $2,500, the sum at and for which the said tract of land and premises were devised by said Jonas Good, Jr., deceased, to the said defendants, Anna B. Glass, and Henry W. Glass, and of which they have had possession under said devise since the death of Catharine Good, the widow of Jonas Good, Jr., in October, 1897, which sum of $2,500, with proper interest thereon, the said defendants, though often requested, have steadily refused to pay.

The said Anna B. Glass and Henry W. Glass say that they have a just and legal defense to the whole of plaintiff's claim in this action, of the following nature and character, to wit: Plaintiff has no right to recover from the defendants the alleged valuation money of the land devised to them as set forth in plaintiff's statement filed, because the said land was absolutely devised to Catharine Good by virtue of the terms of the last will and testament of the said Jonas Good, Jr., deceased, and she, the said Catharine Good, being the said devisee of the said premises, devised the same absolutely unto the defendants by her last will and testament, duly executed on October 12, 1889.

Error assigned was the order of the court making absolute a rule for judgment for want of a sufficient affidavit of defense.

Judgment reversed and procedendo awarded.

N. F. Hall and W. U. Hensel, with them Arthur G. Dickson, for appellant. -- It appears on the face of the record that the plaintiff below was not entitled to any judgment in his favor.

Catharine Good by her last will and testament exercised the power of disposition given her by the will of Jonas Good, Jr., deceased: Lake v. Currie, 2 D.M. & G. 536; Aubert's App., 109 Pa. 447; Dillon v. Faloon, 158 Pa. 468; Ashburner's Est., 2 Pa. Dist. Rep. 776; Forsythe v. Forsythe, 108 Pa. 129; Yetzer v. Brisse, 190 Pa. 346.

William R. Brinton and J. A. Coyle, of Coyle &...