Morrison v. Truby

• Decision Date: 09 November 1891
• Docket Number: 288
• Citation: 22 A. 972,145 Pa. 540
• Parties: JESSIE R. MORRISON v. SIMON TRUBY, JR
• Court: Pennsylvania Supreme Court

22 A. 972

145 Pa. 540

JESSIE R. MORRISON v. SIMON TRUBY, JR

No. 288

Supreme Court of Pennsylvania

November 9, 1891

Argued October 14, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY.

No. 288 October Term 1891, Sup. Ct.; court below, No. 21 December Term 1891, C.P.

On September 11, 1891, an amicable action of assumpsit, between Jessie R. Morrison, plaintiff, and Simon Truby, Jr. defendant, was entered in the court below, the following agreed statement of facts being submitted for the opinion of the court, as if found by special verdict:

"1. That Absalom Reynolds, deceased, was the husband of Mrs Margaret Reynolds and the father of Harry Reynolds and Mrs Jessie R. Morrison, the only persons named in testator's will as devisees of Absalom Reynolds deceased.

"2. That Absalom made and executed his last will and testament on the 31st March, 1877; duly admitted to probate on the 1st March, 1881.

"3. That said Absalom Reynolds died on or about the 26th February, 1881, testate as aforesaid.

"4. That, at the time of the making and execution of siad last will and testament, the said testator was seised in his demesne as of fee, inter alia, of, in, and to the said in-lot No. 44 in the borough of Kittanning, Pa., and that he died so seised of the said in-lot.

"5. That Harry Reynolds, Jessie Reynolds (Morrison), the only two children of testator, and Mrs Margaret Reynolds, the widow, survived the testator and are still in full life.

"6. That said Jessie Reynolds Morrison went into possession of said real estate devised to her under and by virtue of said will, including in-lot No. 44 aforesaid, and claims the same in fee-simple absolutely.

"7. That the said Jessie Reynolds Morrison, by contract dated the 24th August, 1891, she being then and now a widow and sui juris, sold the said in-lot No. 44 in the borough of Kittanning, Pa., to Simon Truby, Jr., for the sum of four thousand dollars, to be paid on the execution and delivery of a deed in compliance with the terms of the contract, and by said contract binding herself to assure the title in her to be in fee-simple, absolutely perfect in law and equity to convey such title to the purchaser.

"8. That said Jessie Reynolds Morrison, in compliance with the terms of the article on her part, did on the 7th September, 1891, make and execute a deed for the said in-lot No. 44, as required by her article, to said Simon Truby, Jr., and did on the said 7th September tender the same to him and make demand for the payment of the purchase money, which deed the said Simon Truby, Jr., this defendant, refused to accept, and refused to pay the purchase money.

"9. The said Simon Truby, Jr., admits that the deed as a deed is unobjectionable; but avers and says that, under the will of said Absalom Reynolds, deceased, here annexed, the said Jessie R. Morrison did not acquire a fee-simple title to the said in-lot, and cannot therefore make conveyance of the same as required and stipulated in said contract. Therefore, it is submitted that if the court finds the facts as submitted to be true, and does further find as a question of law that under the said last will and testament of said testator, the said plaintiff became vested at his death with a title in fee-simple, of, in, and to said in-lot No. 44, and is of the opinion that the deed aforesaid would and doth convey to and invest in said Simon Truby Jr., such title, then and in that case judgment to be entered in favor of the plaintiff, in the form of judgment upon a special verdict, for the sum of four thousand dollars with interest from the 7th September, 1891; and if the court should be of the contrary opinion, and that the law under all the facts is with the defendant, then judgment to be rendered in like manner for the defendant generally."

The material provisions of the will of Absalom Reynolds, above referred to, were as follows:

"Third: I give, devise and bequeath to my son Harry Reynolds, during his natural life, and after his death to his children and their heirs, the parts of in-lots numbered respectively one hundred and eleven (No. 111); one hundred and sixteen (No. 116); and one hundred and twenty-one (No. 121), situated in said borough, which I now own and upon which my tavern house and stabling are located, together with said tavern house, stabling and improvements; to have and to hold the same unto my said son Harry Reynolds during his natural life, and after his death to his children lawfully begotten and their heirs. Also I give and bequeath to my said son Harry Reynolds all the household and kitchen furniture and tavern furniture, dishes, carpets, oil-cloths, linen, plate and goods used in, for and in connection with and in carrying on said tavern or hotel, that may be in said tavern house and property at the time of my death. Also ten thousand dollars of the fifteen thousand dollars which I now have invested in United States bonds (being of those of which my said wife is to receive the interest during her lifetime), and all the interest that may at the time of the death of my said wife remain unpaid on said ten thousand dollars.

"Fourth: I give, devise and bequeath to my daughter, Jessie Reynolds, and her heirs, those five several pieces of land situated in said Kittanning borough and known and designated respectively as out-lots numbered nine (No. 9), eight (No. 8), twelve (No. 12), thirteen (No. 13), and fifteen (No. 15), in the general plan of said borough. Also, that certain piece of land or lot of ground situated in Kittanning borough, and known and designated in the general plan of said borough as in-lot number forty-four (No. 44). Also, that certain piece of land adjoining said borough and situated in Valley township in said county, bounded . . . containing four acres, more or less. Also, I give and bequeath to my said daughter, Jessie Reynolds, twenty-six shares of the capital stock of the Kittanning Bridge Company. Also, thirty shares of the capital stock of the Kittanning Water Company. Also five thousand dollars of the fifteen thousand dollars which I now have invested in United States bonds (being of those of which my said wife is to receive the interest during her lifetime), and all the interest that may at the time of the death of my said wife remain unpaid on said five thousand dollars. Also fifteen thousand seven hundred dollars in cash."

"Sixth: As to all the rest, residue, and remainder of my property and estate which I may own or be entitled to at the time of my death, whether real, mixed or personal, or whatsoever kind and wheresoever situated, I do give, devise and bequeath the same unto my children, Harry Reynolds and Jessie Reynolds, in fee-simple, share and share alike."

"Eighth: It is my will and I do order, direct, devise and bequeath that if either of my said children, Harry Reynolds or Jessie Reynolds, shall die without leaving lawful issue living at the time of his or her death, then, and in that event, all the real estate, personal property, money and property herein or hereby devised, given or bequeathed to the child so dying, shall go, pass to and become vested in the surviving child absolutely and in fee simple."

The plaintiff requested the court to find, as matters of law, inter alia:

1. That under the will of Absalom Reynolds the plaintiff, as daughter and devisee, became invested with title to the real estate mentioned in the fourth clause of the will, including inlot No. 44 in the borough of Kittanning, Pa.

Answer: We so find.

5. That under the said will, said plaintiff took and became invested with a title in fee-simple to all the lands devised to her under the fourth clause of the will.

Answer: We so find.

6. That under all the facts of the case the law is with the plaintiff.

Answer: We so find.

7. That judgment be rendered in favor of the plaintiff for the amount of the claim, with interest from the 7th September, 1891.

Answer: We so find.

The defendant requested the court to find:

1. That, under the facts and law in this case, the plaintiff is not entitled to recover, and the judgment must be for the defendant.

Answer: And now, September 15, 1891, we find that the plaintiff is entitled to judgment, and the foregoing proposition is refused.

The court, RAYBURN, P.J., having entered judgment for the plaintiff for $4,005.33, the defendant took this appeal, assigning for error:

1-4. The answers to plaintiff's points. to

5. The answers to defendant's point.

The judgment is affirmed.

Mr. M. F. Leason (with him Mr. J. H. Painter), for the appellant:

The fourth and eighth clauses of the will are clearly contradictory and inconsistent; and, as the eighth clause cannot be considered mere verbiage having no mission to perform, it must, being later than the fourth, control and modify the devise made, limiting it to a life-estate: Sheetz's App., 82 Pa. 213. In determining the intention of a testator, the court may consider the value of the property devised or referred to in the will, the circumstances of the testator, his character, his family and the amount and character of his estate: Marshall's App., 2 Pa. 388; Postlethwaite's App., 68 Pa. 477. Absalom Reynolds left two children, to one of whom he gave, by the third clause of his will, the one half in value of his estate, for life; and to the other, by the fourth clause, the other one half in value, in feesimple. The eighth clause seems to have been an after-thought. He must have regarded it as his last act, an equalizing clause. This intention is clearly demonstrated from the scheme of the whole will. While not a masterpiece of artistic workmanship, its meaning is plain as to the testator's intention.

Mr. James B. Neale (with him Mr. Ross Reynolds), for the appellee.

Cou...