"The
exceptions to the master's report filed on part of
complainants are to the findings of facts. On a review of the
evidence we are of the opinion that the master has correctly
found the facts against the contention of the complainants.
Adopting his findings, we then have the case of a man fully
understanding what he was doing, and without any undue
influence, fraud or coercion, and comprehending the effect of
his act, and intending to equalize his daughters with his
sons as to what he had heretofore given them, had the land
surveyed and a plot made, and sent written instructions to
his attorney as to what he wanted done, and, having the
papers prepared and fully explained to him, deliberately
executed the paper in question and delivered it to his
daughter, the donee, for recording, and it was recorded.
"The
only reason we see to doubt that the letter sent to A. M
Brown, Esq., is not wholly the production of Mr. Knowlson
without dictation by any one, is that it expresses so clearly
and unambiguously what he wished to do. It indicates a man
with accurate knowledge of the business he wishes to
transact. We are well satisfied that it was written, signed
and sent by him. The letter of instructions is as follows
. . . 'I made deeds to my sons for their shares of my
property; I want you to make a deed from Richard Knowlson and
Harriet F. Knowlson, my wife, to my daughter, Elizabeth A
Fleming, for her share of my property. I want you to write an
agreement with my daughter that I have the property as long
as I live, and at my death my wife and daughter to have the
use of the property equally between them, and at my
wife's death all to belong to my daughter. I want you to
fix my personal property that at my death it will belong
equally to my wife and daughter.'
"The
writer knew what he intended as to the land in question. It
was a deed to his daughter, -- a deed in fee, but with an
agreement on part of the daughter that the father should have
a life interest in it, etc., and as to the personal property,
it was a will. Had the direction of the letter been literally
complied with, the deed would have been absolute on its face,
and Mrs. Fleming would have executed an agreement as to the
conditions. The attorney, intending to carry out the
instructions, embodied the conditions in the deed instead of
in a separate paper, and prepared a will as to the
personalty.
"The
intentions of the letter and of the deed were to vest a
present title in the grantee. Has that been done? The master
is of the opinion that under the rules of interpretation laid
down in Turner v. Scott, 51 Pa. 126, it has not been
done; that the interest does not vest until after the death
of Mr. Knowlson.
"The
principle or rule laid down in Turner v. Scott is that,
regardless of the form of an instrument, 'a disposition
of property to take effect after the death of the grantor, if
it vests no present interest, but only directs what is to be
done after the death of the maker, is a will and not a deed.
A disposition to take effect after death is a will.' With
this rule we have no contention. Although Turner v. Scott has
been cited as a leading case ever since the decision was
made, my impression is that the case itself, -- not the
principle -- was never entirely satisfactory, even to the
Supreme Court or to the profession. AGNEW, J., dissented. The
dissatisfaction was and is with the interpretation of the
meaning of the paper. Its interpretation was put by Judge
WOODWARD at the time, principally, and in succeeding cases it
has been put wholly, on the potency of the words contained in
the grant, after reserving a life estate. 'And this
conveyance in no way to take effect until after the decease
of the said John Scott, the grantor,' and in the habendum
'to have and to hold the premises after the decease of
the said John Scott.' See Eckman v. Eckman, 68
Pa. 460; Waugh v. Waugh, 84 Pa. 350; Driesbach
v. Serfass, 126 Pa. 32; Cable v. Cable, 146 Pa.
451. In the court below these words were construed in
connection with the whole instrument; in the Supreme Court as
though they stood alone. In numerous subsequent cases in
which all the other parts of the instrument are substantially
identical with that in Turner v. Scott, except the words
above quoted, the instrument has been decided to be a deed.
The master is of the opinion that the present case is
stronger than Turner v. Scott on the same side. We do not so
consider it.
"In
our case the words held in Turner v. Scott to be the
controlling words are entirely wanting. The habendum has no
qualification of the absolute grant contained in the body of
the deed. The deed is a conveyance in fee simple, absolute on
its face and taking immediate effect, were it not for this
condition or reservation, to wit: 'But it is expressly
understood that the above described conveyances are made
subject to the following terms, conditions and reservations,
to wit: First. The aforesaid Richard Knowlson reserves to his
own use and enjoyment the full interest and estate in the
above described properties, the rents, issues and profits
thereof for and during the term of his natural life. Second.
Should Harriet Foster Knowlson, wife of Richard Knowlson
aforesaid, one of the parties of the first part thereto,
survive the said Richard Knowlson, then at his death she
shall have for her own use the full right, title and estate
in the undivided one half of the whole of the above described
properties or one half of the rents, issues and profits
thereof for and during her natural life.'
"This
may be considered a reservation of a life estate in the
grantor. But is it a declaration that the interest granted to
the daughter is not to vest until the death of the grantor?
We think it is not, but that it is a present grant of the
estate -- a vested interest in the grantee. The words
'the full interest and estate in the above described
properties' seem to us to be merely intended to be, and
are in fact and law the same as 'the rents, issues and
profits thereof,' and each is for the life of the grantor
-- each or both together mean but a life estate. This is
further evident from the clause, reserving a life estate for
his wife -- where 'right, title, interest and
estate,' is made the equivalent of 'rents, issues and
profits thereof.' The intention to presently vest a...
