In re Estate of Simmons

• Decision Date: 09 March 1891
• Docket Number: 213
• Parties: ESTATE OF J. F. SIMMONS, DECEASED
• Court: Pennsylvania Supreme Court

21 A. 402

140 Pa. 567

ESTATE OF J. F. SIMMONS, DECEASED

No. 213

Supreme Court of Pennsylvania

March 9, 1891

Argued February 18, 1891

APPEAL BY J. A. SIMMONS ET AL. FROM THE ORPHANS' COURT OF SCHUYLKILL COUNTY.

No. 213 July Term 1890, Sup. Ct.; court below, number and term not given.

On October 28, 1889, Daniel D. Moreton, executor of the will of John F. Simmons, deceased, presented his petition setting forth in substance:

That the testator died on September 22, 1884, leaving to survive him a widow and nine children, named in the petition; that of the children, one, Mary Jane, was the widow of John Nimelton, deceased, and another, intermarried with Albert Wetzel, had since died; that the testator in his lifetime purchased from T. M. Russell, a certain described lot in the borough of Pottsville, and, by the contract, a certain part of the purchase money was not to be paid by Simmons to Russell until the latter could make a clear title to the premises, and that this was not done in the lifetime of said Simmons.

That in the summer of 1873, said John F. Simmons entered into a parol contract with John Nimelton, his son-in-law, by which in consideration of $600 he agreed to sell and convey to the latter, in fee-simple, a part of the lot of ground mentioned with the buildings thereon, fully described in the petition, the deed for the property to be made when the purchase money was paid and Simmons had obtained the title from Russell; that, in pursuance of said contract, immediately upon the completion of the dwelling-house, to wit, in the fall of 1873, said John Nimelton went into possession of the premises agreed to be sold, and continued in possession of the same till the date of his death on October 9, 1877, intestate; that, in his lifetime, said John Nimelton had made various payments on account of said purchase money, aggregating $440, the receipts for which were produced; that, since the death of said Nimelton, his widow and children (the latter being minors and having W. F. Scheerer as their guardian), or the tenants under them, had continued in uninterrupted possession of said premises up to the filing of said petition; that said guardian had lately tendered to the petitioner the balance of the purchase money, with interest due, on said contract, and had requested that a deed for the premises described therein be made to him as guardian; that John F. Simmons had died without having made any provision for the performance of said contract, but, on the contrary, had devised said property to his widow for the period of her natural life; that, since the death of said John F. Simmons, the petitioner had succeeded in acquiring a good title to the lot purchased from Russell, through several conveyances particularly mentioned, prior to the execution and delivery of which no valid title could have been made for the lot purchased by Nimelton; praying that the court would decree a specific performance of the said contract, on the payment by the said guardian to the petitioner of the balance due thereon with interest, and that a citation to the widow and heirs of said John F. Simmons be awarded, to show cause, etc.

The said citation being served, the widow, Elizabeth Simmons, and two children, John A. Simmons and Mrs. Liddell, made answer, admitting the purchase alleged in the petition to have been made by John F. Simmons from T. M. Russell, but denying the parol contract alleged to have been made by Simmons with John Nimelton, and averring that the possession had and held by said Nimelton, his widow and children, was not under a contract of purchase but under a tenancy, and that the improvements made upon the property by Nimelton in his lifetime were trifling and inconsiderable.

The cause, on December 9, 1889, was referred to Mr. P. M. Dunn, as examiner and master.

On May 19, 1890, the master reported his findings from the evidence submitted, that the parol contract by John F. Simmons with John Nimelton was entered into as averred in the petition; that, in pursuance of it, Nimelton took possession of the premises described, and paid to Simmons in his lifetime $440, on account of the purchase money; that, under the contract, although Simmons had paid for the dwelling erected on the lot, Nimelton had done the larger part of the excavation for the house, built an out-house, other out-buildings, made the cellar, built fences, terraced the garden, and planted trees. Upon these findings, the master, citing Sage v. McGuire, 4 W. & S. 228; Edwards v. Morgan, 100 Pa. 330; Moore v. Small, 19 Pa. 468; Milliken v. Dravo, 67 Pa. 230; §§ 15, 16, act of February 24, 1834, P.L. 75, reported that the contract was enforceable, notwithstanding the statute of frauds, and recommended the decree prayed for.

To the master's report, exceptions were filed alleging that the master erred, under all the facts of the case as shown in the testimony, in recommending a decree of specific performance. On the argument of these exceptions, the point was made that neither the widow and heirs of John Nimelton, deceased, nor any one representing the latter's estate, had been served with the citation. Thereupon, Mary J. Nimelton, widow, and W. F. Scheerer, guardian of the minor children, joined in a petition, in the nature of an answer to the citation, in which the contract and other allegations of the petition of the executor of John F. Simmons were admitted, and they united with said executor in praying for specific performance.

On July 7, 1890, the court, PERSHING, P.J., filed an opinion, which after stating the facts proceeded:

In Anshutz's App., 34 Pa. 375, it is held that when both the vendor and vendee of real...