Schaper v. Pittsburgh Coal Co.

• Decision Date: 05 January 1920
• Docket Number: 125
• Parties: Schaper v. Pittsburgh Coal Co., Appellant
• Court: Pennsylvania Supreme Court

109 A. 762

266 Pa. 154

Schaper v. Pittsburgh Coal Co., Appellant

No. 125

Supreme Court of Pennsylvania

January 5, 1920

Argued October 20, 1919

Appeal, No. 125, Oct. T., 1919, by defendant, from judgment of C.P. Allegheny Co., July T., 1919, No. 1786, for plaintiff on case stated in suit of John G. Schaper v. Pittsburgh Coal Company. Affirmed.

Case stated to determine marketability of title to real estate. Before CARPENTER, J.

The court entered judgment for plaintiff for $13,380.08 on the case stated. Defendant appealed.

Error assigned was entry of judgment for plaintiff.

The judgment is affirmed.

Robert N. Grier, with him Don Rose, for appellant. -- The coal land in question passed under the will of Charles A. Snyder although after-acquired: Roney v. Stiltz, 5 Wharton 381.

A clause in a will making provision for children as a class has been held to include an after-born child: Leyrer's Est 17 Pa. C.C.R. 132; Newlin's Est., 209 Pa. 456; Randall v. Dunlap, 218 Pa. 210.

The widow took a fee in one-third of the coal lands: Redding v. Rice, 171 Pa. 301.

Hugh M. Stilley, with him Alexander Gilfillan, for appellee. -- The widow took a life estate: Redding v. Rice, 171 Pa. 301; Tyson's Est., 191 Pa. 218, 225; Wood v. Schoen, 216 Pa. 425, 428; Moore's Est., 241 Pa. 253; Cooper v. Pogue, 92 Pa. 254; Long v. Paul, 127 Pa. 456; Long v. Hill, 29 Pa.Super. 606.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING and KEPHART, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

On September 10, 1918, plaintiff and defendant entered into a written agreement for the sale, by the former to the latter, of an undivided half-interest in certain coal underlying lands in Allegheny County. A proper deed was tendered, and payment of the consideration demanded, which was refused on the ground that plaintiff could not convey a good title. A case stated, setting forth all material facts, was agreed to; upon consideration whereof, the court below entered judgment for plaintiff, and defendant appealed.

Charles A. Snyder executed his will in 1883, and died in 1889, leaving a widow, a daughter and a son, the latter born in 1884, a year after the execution of the will. Testator acquired the property here involved in 1884, and it, while of course not mentioned in the will, comprised all the real estate owned by him at the time of his death; although he owned other real estate when his will was made. The widow married the present plaintiff in 1893, and died in 1912, survived by her husband and the beforementioned daughter and son. The latter, in 1909, mortgaged his interest, describing it as "an undivided one-half," subject to the life estate of his mother. In 1911, the mortgaged premises were sold under foreclosure and conveyed by the sheriff to plaintiff.

The questions for our consideration, as stated by appellant, concern the proper construction to be placed upon the following testamentary provisions from the will of Charles A. Snyder: "I give and bequeath unto my dear wife, Lena, all my remaining property . . . so long as she remains my widow, to have and hold as her own, but if she should choose to marry again then she is to have but one third of all the property above named, the other two thirds to be held in trust by her for the use of my children till the youngest becomes of age, then to be equally divided between them; if my children should die before reaching the age of twenty-one without marrying and leaving heirs of their own, then the property is still to be held by my wife as her own to do with as she may please, but if one of them dies the property goes to the others and so on."

We agree with the conclusions reached by the court below (not controverted by either side) that the words "all my remaining property" constitute a general devise of testator's property of every kind, and, under section 10 of the Act of April 8, 1833, P.L. 249, and section 1 of the Act of June 4, 1879, P.L. 88, the real estate in question, acquired by testator after making his will, passed by this general devise; further, that the son of testator, although born after the date of his will (children being designated therein as a class), is provided for within the contemplation of section 15 of the Act of April 8, 1833, P.L. 249: see Newlin's Est., 209 Pa. 456, and opinion of Judge PENROSE in Leyrer's Est., 17 Pa. Co. Ct. R. 132.

The important question in the case concerns the quantum of the estate taken by the widow. Appellant contends she took a fee in one-third of testator's coal lands, while appellee claims she had but a life-estate; the latter view was adopted by the court below. Undoubtedly a devise during widowhood grants but a life-estate (Cooper v. Pogue, 92 Pa 254, 257; Redding v. Rice, 171 Pa. 301, 304); and we not only fail to find anything in the present will to indicate a design that the widow shall, upon remarriage, take more than...