Sager v. Mead

• Decision Date: 01 October 1894
• Docket Number: 133
• Citation: 164 Pa. 125,30 A. 284
• Parties: Elizabeth Sager et al., Appellants, v. George Mead
• Court: Pennsylvania Supreme Court

30 A. 284

164 Pa. 125

Elizabeth Sager et al., Appellants, v. George Mead

No. 133

Supreme Court of Pennsylvania

October 1, 1894

Argued April 30, 1894

Appeal, No. 133, July T., 1893, by plaintiffs, from judgment of C.P. Warren Co., Sept. T., 1891, No. 57, on verdict for defendant. Reversed.

Ejectment. Before OLMSTEAD, P.J.

The facts appear by the opinion of the Supreme Court.

Plaintiffs claimed under the will of George A. Cobham, defendants under an orphans' court sale.

Plaintiffs offered a paragraph of defendant's abstract of title referring to the will of George A. Cobham as filed, as an item of proof that the will was filed, to be followed by entry of filing, etc. Excluded as irrelevant; exception. [11]

The court, under objection and exception by plaintiff, as to jurisdiction of register, admitted in evidence the renunciation of the executors named in George A. Cobham's will, the record of letters of administration granted to R B. Smith, petition for his removal, order vacating his appointment, request for appointment of W. M. Lindsey, bond and letters of administration granted to Lindsey, proceedings for sale of real estate to pay debts, and record of deed from W. M. Lindsey, administrator, to George N. Parmlee. [1-5]

Plaintiffs offered in evidence the agreement, signed by Georgena C Cobham, Elizabeth Sager, John Sager, Alice Mead, George Mead and Henry Cobham, dated June 18, 1871, and identified by the witness, James O. Parmlee, Esq., to be followed by evidence that the will of George A. Cobham was withdrawn from probate; that letters of administration upon his estate were granted to W. M. Lindsey; that said administrator obtained from the court an order of sale of the real estate of the decedent, George A. Cobham, without exhibiting to the court a schedule of the debts of the decedent; that the real estate of said decedent, consisting of several parcels, was sold as one body of land to George N. Parmlee, the person named in said agreement; that said Parmlee paid no money for said land to the administrator; that the said George N. Parmlee made deeds for different parcels of said land to different parties to said agreement, receiving no money from either of them. This evidence being for the purpose of showing that the administrator's sale, under which defendant claims title, was a fraud upon the other beneficiaries beside the parties to the agreement under the will of the testator, George A. Cobham, and void as to them. Also to prove that defendant knew of the will and who the trustees and executors under it were.

Counsel for defendant objected to the offers, except so much as goes to prove that W. M. Lindsey was appointed administrator, and that in the course of his duties as administrator, he applied to the orphans' court of Warren county for leave to sell the land in controversy, made sale thereof, the return approved by the court and deed made in pursuance thereof.

Objections sustained, evidence excluded, exception by plaintiffs' counsel and bill sealed. [12-16]

The petition for leave to sell concluded as follows:

"And your petitioner further represents that the available personal assets of the decedent, that have come to the hands and knowledge of your petitioner, are entirely insufficient to pay the debts owing by said estate, as appears by accounts and claims duly authenticated and filed with him.

"That the whole amount of personal property as invoiced and appraised by R. B. Smith, the former administrator, after deducting the exemption claimed and retained by the children of the deceased, was $921, to which were added some claims and accounts supposed to be due the deceased, but from which nothing has been realized and probably never will.

"The debts now presented and filed with your petitioner, duly authenticated, amount to $5,124.64, being a balance over and above the assets of $4,203.64, besides interest and costs of administration.

"Your petitioner, therefore, with the full knowledge and approbation of all the heirs of the decedent, prays an order that the herein described real estate shall be sold for the payment of debts." No schedule of debts was annexed.

The court charged in part as follows:

"[I believe that the orphans' court sale was a regular sale, and that any act done by the administrator after his appointment and before the probate of this will was a legal and valid act, just precisely as much as though no will had been probated at all; that you cannot go back and inquire whether this will was in existence at that time, although not upon the record. If such things could be done there would be no security of titles, particularly those obtained at orphans' court sale. After this great lapse of time, which always operates and should operate to quiet titles, I think it would be entirely illegal and contrary to public policy, and operate as a disturbance of titles that have rested quiet for many years, to hold that this whole transaction can be opened at this period and we go back and undo what the orphans' court did do in this case, and what the administrator under the authority of the orphans' court did. Under the view that we take of this case the plaintiffs cannot recover, and your verdict will be for the defendant.]" [9]

Plaintiffs' points were among others as follows:

"1. The undisputed evidence showing that the deceased died testate, and by his will appointed trustees and executors, and no renunciation or refusal to act by said executors having been shown, the register had no jurisdiction to appoint Rufus B. Smith or W. M. Lindsey administrators of the estate of George Ashworth Cobham, deceased." Refused. [6]

"2. The undisputed evidence showing that George Ashworth Cobham died testate, the register had no jurisdiction to issue letters of administration, except with the will annexed." Refused. [7]

3. The petition for sale was insufficient to confer jurisdiction and the sale thereunder void. Refused. [10]

4. Request for binding instruction. Refused. [8]

Verdict and judgment for defendant.

Errors assigned were (1-5, 11-16) rulings on evidence; (6-10) instructions; quoting instructions and bills of exceptions but not evidence.

Judgment reversed, and venire facias de novo awarded.

D. I. Ball, Geo. H. Higgins and Allen & Sons with him, for appellants. -- The jurisdiction of the register to appoint an administrator rests entirely upon the concurrence of the two facts of death and intestacy: 2 Bl. Com. 494; McPherson v. Cunliff, 11 S. & R. 430; Devlin v. Com., 101 Pa. 276; Kane v. Paul, 14 Peters, 33; Griffith v. Frazier, 8 Cranch, 24; Grier's Ap., 101 Pa. 412; Keene's Ap., 60 Pa. 504; Halsey v. Tate, 52 Pa. 311.

The petition of the administrator did not show facts sufficient to give the court jurisdiction: Stiver's Ap., 56 Pa. 9; Torrance v. Torrance, 53 Pa. 511; act of March 29, 1832, P.L. 198; McKee v. McKee, 14 Pa. 231.

An instrument intended and used for the purpose of prejudicing the rights of another, is void, as against the rights of the party intended to be injured by it: Bunn, Raiguel & Co. v. Ahl, 29 Pa. 387; Jackson v. Summerville, 13 Pa. 359; Gilbert v. Hoffman, 2 Watts, 66; Dean v. Connelly, 6 Pa. 239.

M. F. Elliott, H. McSweeney, W. D. Hinckley and W. E. Rice with him, for appellee. -- The register had jurisdiction: Statute 21 Henry VIII., ch. 7, § 3; Roberts' Digest, 252; Grove's Est., 2 Woodw. Dec. 182; Patton's Ap., 31 Pa. 465; Cook's Est., 1 Phila. 342; 1 Wms. Exrs. 657; Biglow v. Biglow, 4 Ohio 138; Barkaloo v. Emerick, 18 Ohio 268; Schluter v. Bank, 117 N.Y. Ct. Ap. 125; Woerner on Admrs., 568, 571, 588; Foster v. Brown, 19 Am. Dec. 672; Hutcheson v. Priddy, 12 Grattan, 85; Broughton v. Bradley, 34 Ala. 634; s.c., 73 Am. Dec. 474; Sims v. Boynton, 32 Ala. 353; Ikleheimer v. Chapman's Admrs., 32 Ala. 676; Ragland v. Green, 14 S. & M. 194; Peebles' Ap., 15 S. & R. 41.

The petition for sale sets forth sufficient facts to give the court jurisdiction to decree a sale: Stiver's Ap., 56 Pa. 9. The presumptions are in favor of the validity of the sale: Potts v. Wright, 82 Pa. 498. It cannot be attacked collaterally: Cock v. Thornton, 108 Pa. 637.

The court below did not err in rejecting the evidence offered by appellant for the alleged purpose of showing fraud in procuring the sale of the real estate of Cobham, deceased.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

This action of ejectment for the land described in the writ had its inception in circumstances which appear to be quite out of the ordinary course.

On October 6, 1870, George A. Cobham died testate, seized, inter alia, of the land in controversy, leaving to survive him three daughters: Georgena C. Cobham, Elizabeth (intermarried with John Sager) and Alice (afterwards intermarried with George Mead, the defendant, and since dead), and a stepson, Henry Cobham, who was also a nephew of the deceased. As appears by his will, the testator devised said lands to Henry Cobham, Georgena C. Cobham, John Cobham and Rasselas Brown, upon the various trusts, for life etc., specified in said will, and appointed them executors. The office of trustees having become vacant by the death of said Georgena C. and John Cobham, and in consequence of the other two trustees having ceased to act, in August, 1891 said vacancies were filled by the appointment of plaintiffs.

Pursuant to a citation issued and served on Georgena C. Cobham Elizabeth Sager, John Sager, Alice Mead and George Mead, said will was presented for probate. Thereupon a caveat was filed by said John Sager, Elizabeth Sager and Alice Mead, and the matter was so proceeded in, at the instance of the said caveators, that an issue was directed "to try the validity of said writing and...