Simon's Estate
| Decision Date | 10 July 1902 |
| Docket Number | 27-1901 |
| Citation | 20 Pa.Super. 450 |
| Parties | Simon's Estate |
| Court | Pennsylvania Superior Court |
Argued December 10, 1901 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]
Appeal by Madge Kessler, from decree of O. C. Phila. Co.-1890, No. 346, dismissing exceptions to adjudication in estate of John Simon, deceased.
Exceptions to adjudication.
Ashman, J., filed an adjudication, the material portions of which are as follows:
After a gift of his estate real and personal to his wife, Sarah Simon, for life, or during widowhood, the testator gave one seventh thereof to each of his children, William, Rebecca, Emma and John absolutely; one seventh to his executors in trust to pay the net income to his daughter Julia for life, and at her death the principal to testator's grandchildren in equal shares, subject to the payment of $ 200 for the admission of his said daughter, if she should desire it, to the Methodist Home, and to the payment of her funeral expenses; one seventh to his executors in trust to pay the net income to his daughter, Eliza, for life, and the principal at her death to her children and issue per stirpes of her deceased children equally; and of the remaining one seventh he gave one third to his granddaughter, Minnie Griffith, absolutely, and two thirds to such of his six children who should then be living, and the issue per stirpes as should be dead, in equal shares; the shares of his daughters, Julia Ann and Eliza, to be held upon the same trusts as their original portions. He provided that if his daughter Rebecca should die possessed of the whole or any part of the share so devised and bequeathed to her, then the same should be held by his executors in trust to pay the net income to her husband for life, and the principal to testator's grandchildren then living, giving power, however, to his daughter to dispose of her estate in any other way than by will. He gave full power to his executors to sell his real estate.
By codicil he provided that, if his son John should die seized of the whole or any part of his share, the said share should go to his said son's children and issue per stirpes, and, in default of issue, to his executors in trust to pay the net income of said share to his said son's wife for life, and the principal at her death to testator's grandchildren then living, but with full power to his said son to alien his said share. The testator died March 30, 1884.
Sarah Simon, the widow and life tenant, died February 9, 1898.
The present account is of the amount derived from sales of real estate and awarded by adjudication of the executor's account, to wit: $ 11,966.45.
William Simon and Sarah Simon, the executors and trustees named in the will, were dismissed in December, 1892, and the Commonwealth Title Insurance and Trust Company was appointed administrator d. b. n. c. t. a. on May 12, 1893. The balance in cash and securities is $ 9,604.98; income account shows amount due accountant on income account, $ 61.90; there has been received since filing, $ 275.98; balance due estate, $ 214.08.
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The share of John Simon, a son, was assigned by mesne conveyances to Madge Kessler.
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Madge Kessler claimed the interest of John Simon, a son of testator, in the estate, by sundry conveyances, to wit: deed dated October 24, 1888, by John Simon and wife to Julia A. Britton, for one seventh and one sixth of two thirds of one seventh of the estate; deed dated November 24, 1896, from Julia A. Britton to Edward Kessler for the same premises; deed dated April 15, 1897, from Edward Kessler and Madge Kessler, his wife, to Nicholas J. Fitzgerald, for the same, and deed dated April 15, 1897, from Nicholas J. Fitzgerald to Madge Kessler.
It was objected that Julia A. Britton was a married woman, and that her separate deed is void. Charles Britton, her husband, was examined, and admitted that he had not lived with her for nearly thirty years. He alleged desertion on her part. Certificate of the court of common pleas (C. P. No. 1 December term, 1898, No. 820) was produced, declaring Julia A. Britton a feme sole trader, the petition alleging desertion by the husband for over twenty years. It is not necessary, however, to discuss the validity of the deed, under the findings of fact which the auditing judge thinks are justly deducible from the evidence. John Simon, a son of the testator, was a farmer in a small way, who worked a farm which he leased from Charles Waters. In 1888, according to his statement, his rent was considerably in arrears and a levy had been made by his landlord on the stock and other personal property. Thereupon, in the summer of that year, he made a bill of sale of his effects to his sister, Julia A. Britton, and she engaged with the agent of the lessor to pay the rent in his stead. In November, 1889, she sold the property at public sale, realizing therefrom $ 1,331.54. She paid to Mr. Shallcross, the agent, $ 945, as rent, but nothing to John Simon. In October, 1888, Mrs. Britton, when on a visit to Simon, was asked by him if she would consent to hold his interest in the testator's estate in trust for the benefit of his wife and children and to protect them from loss if he should go into business and fail. He seems to have been moved to this anxiety and to the necessity for some such action by the provision in the codicil of the father's will that in case of his death without leaving issue his share would ultimately go to testator's grandchildren, unless he should himself alienate his share. This seems to be shown by the form of his question to Mrs. Britton: " If she could take my interest in the estate and hold it in case anything should happen to me, for the benefit of my wife and children, so that they could get what was coming to me, as father wished by his will." That this belief was encouraged and was used by Mrs. Britton for her benefit and as a means of misleading him, is evidenced by her answer to Mrs. Simon. The latter asked her: and she replied: As a result of this request, a deed was prepared by Andrew J. Maloney, Esq., and was executed in his office by John Simon, and subsequently by his wife, conveying John Simon's interest to Mrs. Britton. The execution of the paper was marked, if the testimony of the witnesses was true, by some peculiar incidents. A check of a Mr. Bender, for $ 1,000, being the amount of the consideration named in the deed, was handed by a Mr. Dickinson to Simon, and this check, immediately after the parties left Mr. Maloney's office, was snatched from the hands of Mr. Simon by Mrs. Britton, who exclaimed, " That is the way we fixed up Aunt Eliza." When Simon was asked by counsel, " What did you say to that?" he replied, " Nothing at all; I thought it was merely a form." Mr. Bender was put on the stand and testified that in 1888 he was twenty-three years of age; that he did not draw the check; and did not have $ 1,000 in bank. The wife of Simon testified that the purpose of the conveyance was what her husband had described, and she added that she desired her uncle or father as trustee, to which, however, Mrs. Britton would not listen. Mrs. Britton accompanied her to the office where she joined in her husband's deed, and told her the transfer was a pure matter of form. When, some eight years afterwards, her husband had been advised by counsel that he had been swindled, Mrs. Simon called on Julia Britton, and, in answer to the inquiry whether she intended to restore the property, the latter replied, " It just depends on how John acts." Mr. Dickinson, with whom Julia Britton lived, and who advised and assisted her in these transactions, testified that, at the time of the execution and delivery of the deed, Mrs. Britton paid to Simon $ 50.00 and handed back to him a judgment note for $ 950 previously drawn by him in her favor. He was unable to say whether this note had not been given in order to secure the payee against the rents which she had assumed, and for which she had taken a bill of sale. The existence of the note was not hinted at by any other party except Mrs. Britton, and it was not mentioned by the witness in his examination in chief. The counsel who prepared the deed and witnessed its execution declared that the consideration, $ 1,000, actually passed between the parties, but in what shape, as in cash or the equivalent of cash, he had entirely forgotten. It was shown that in her lifetime the wife of testator had come into possession of some $ 7,000 as her separate estate, and had divided it equally among her seven children, but had entrusted the share of John Simon to Julia Britton, who admitted to her sister that it had been so given her that she might with it pay John's debts. According to Mr. Dickinson, $ 700 of this money was so used to his knowledge. With the single statement of Dickinson to the contrary, every item of the foregoing evidence points to the theory that John Simon intended to constitute his sister a mere trustee, with no beneficial interest in herself whatever. The form of the conveyance which he employed is, in a court of equity, immaterial, because equity will so mold the instrument as to accomplish the purpose which was contemplated by the contracting parties. He was a farmer, and apparently unused to business, and was dealing with persons who were unquestionably shrewd. It is...
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