Hickok v. Still

• Decision Date: 20 May 1895
• Docket Number: 5
• Citation: 31 A. 1100,168 Pa. 155
• Parties: Geraldine H. Hickok, Appellant, v. Albanus C. Still, Trustee, etc
• Court: Pennsylvania Supreme Court

31 A. 1100

Geraldine H. Hickok, Appellant, v. Albanus C. Still, Trustee, etc

168 Pa. 155

No. 5

Supreme Court of Pennsylvania

May 20, 1895

Argued January 29, 1895

Appeal, No. 5, Jan. T., 1895, by plaintiff, from judgment of C.P. No. 2, Phila. Co., March T., 1894, No. 1028, for defendant, on case stated in equity. Affirmed.

Case stated in the nature of a bill in equity for specific per formance.

The facts appear by the opinion of the Supreme Court.

Error assigned was in dismissing plaintiff's bill.

We are of opinion that the contract made with the plaintiff by Charles Still was not a valid exercise of the power of sale conferred upon him by the will of Sarah K. Still, and the judgment of the court of common pleas is affirmed at the cost of the appellant.

George Stuart Patterson, for appellant. -- This contract of sale was a valid exercise of the power of sale given the executor under the will: Jones v. Wood, 16 Pa. 25; Lancaster v. Dolan, 1 Rawle, 231; King v Merritt, 67 Mich. 194; Demarest v. Ray, 29 Barbour, 563; Ex parte Huff, 2 Pa. 227; Shippen v Clapp, 29 Pa. 265; Corson v. Mulvany, 49 Pa. 88.

There are no American authorities, so far as the counsel for the appellant knows, which impeach the validity of such a contract. There are two English cases, however, which may be urged on behalf of the position of the appellee: Clay v. Rufford, 5 De Gex & Smale, 768; Oceanic Steam Navigation Co. v. Sutherberry, L.R. 16 Ch. Div. 236. These however may be distinguished.

A court of equity will grant specific performance of the contract: Cathcart v. Robinson, 5 Peters, 263; Marble Co. v. Ripley, 10 Wall. 339; Franklin Tel. Co. v. Harrison, 145 U.S. 459; Corson v. Mulvany, 49 Pa. 88; Smith's App., 69 Pa. 474; Childs v. Gillespie, 147 Pa. 173; Green v. Low, 22 Beavan, 625; Weeding v. Weeding, 1 J. & H. 424; Moss v. Barton, L.R. 1 Eq. Cases, 474; Mills v. Haywood, L.R. 6 Ch. Div. 196; Nicholson v. Smith, L.R. 22 Ch. Div. 640; Mortlock v. Buller, 10 Vesey, 292; Ord v. Noel, 5 Maddock's Ch. Rep. 266; Goodwin v. Fielding, 4 De G.M. & G. 90; Dykes's Est., L.R. 7 Eq. 337; King v. Roney, 5 Ir. Ch. Rep. 64; Dowell v. Dew, 1 Y. & C.C.C. 345.

John G. Johnson, for appellee. -- The agreement executed by Charles Still, Jr., executor, was not a valid exercise of his power to sell: Clay v. Rufford, 5 De Gex & Smale, 768; Oceanic Steam Navigation Co. v. Sutherberry, L.R. 16 Ch. Div. 236.

A decree enforcing specific performance of the agreement executed by Charles Still, Sr., would not be in accordance with the principles of equity: Fry on Specific Performance, sec. 389; Perry on Trusts, vol. 2, sec. 787.

Before GREEN, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE FELL:

The case stated is intended to take the place of a bill in equity to enforce the specific performance by the defendant of a contract for the sale of real estate made by his predecessor in the trust. The primary question is whether the agreement entered into by Charles Still as executor was a valid exercise of the power of sale conferred upon him by the will of Sarah K. Still. The power given is in these words: "I authorize and empower my executor at any time during the lifetime of my husband with his assent, and I direct him immediately upon the decease of my said husband, or so soon thereafter as may be, to sell the whole or any part of my real estate for cash, upon credit or ground rent" etc. On Oct. 20, 1890, Charles Still, executor, agreed with the plaintiff in writing as follows: ". . . that if Geraldine H. Hickok desire to become a purchaser of that piece of ground or land, with house and appurtenances thereon . . . of which she is now lessee and occupier at any time during her leasing of the property she may do so for the sum of nine (9) thousand dollars, to be paid as follows," etc. The plaintiff was then in possession under a lease from the executor, which did not end until May 1, 1894. Charles Still died Feb. 13, 1892, and letters of administration de bonis non cum testamento annexo were granted to Albanus C. Still, the defendant in the case stated, and the appellee. On Dec. 3, 1893, the plaintiff notified the defendant of her intention to purchase under the agreement.

The power conferred is an authority to sell during the life of the husband, and a peremptory direction to sell immediately after his death. As the husband of the testatrix was the executor, and during his life the sole possessor of the power, he might have made a sale deferring the time of settlement. This however he did not do. He did not sell the property, but entered into an agreement with the plaintiff which gave her the privilege of buying at any time within three...