Smith v. Tuit

• Decision Date: 28 June 1889
• Docket Number: 374
• Parties: L. E. SMITH v. B. J. TUIT
• Court: Pennsylvania Supreme Court

17 A. 995

127 Pa. 341

L. E. SMITH v. B. J. TUIT

No. 374

Supreme Court of Pennsylvania

June 28, 1889

Argued May 15, 1889

ERROR TO THE COURT OF COMMON PLEAS OF FAYETTE COUNTY.

No. 374 January Term 1889, Sup. Ct.; court below, No. 137 June Term 1886, C.P.

On April 5, 1886, Belford J. Tuit brought ejectment against Laura E. Smith for a certain house and lot in New Salem, Pa. The defendant pleaded, not guilty.

At the trial on October 8, 1888, before EWING, J., the plaintiff offered in evidence a deed to himself from Sarah Smith, under whom both parties claimed, dated August 29, 1885, conveying the property in dispute, and rested.

The defendant then offered in evidence the following paper:

"The last Will and Testament of Sarah Smith, of the township of Menallen, in the County of Fayette, State of Pennsylvania: I Sarah Smith, considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following:

"First. It is my will that all my just debts and funeral expenses including good, decent tombstones, together with the proving of this my last will and testament, be first paid by my executor hereinafter named out of my estate.

"Second. I will and bequeath to Laura E. Smith all my real and personal property of whatsoever kind or nature, including house and lot that I purchased of William M. Jones in town of New Salem, adjoining lands of Jacob Allamon, Caleb Antram and others. I desire that the above described property, after the settlement of all my just debts, heretofore mentioned, shall be for his kindness and care toward me in sickness and in health, in watchfulness and care during all my natural life and at my decease the aforesaid property shall belong to the said Laura E. Smith, his heirs or assigns with all rights, liberties and hereditaments, forever and forever.

"Third. It is my will and desire that the said Laura E. Smith have possession of my house on first day of November, 1884, and he take me with him and that he take care of me as one of his own family.

"And lastly, as to all the rest, residue and remainder of my personal estate, goods and chattels of what kind and nature soever, I give and bequeath the same to Laura E. Smith, his heirs or assigns forever, hereby revoking all former wills by me at any time made.

"Lastly, I do hereby nominate and appoint George W. Hess executor of this my last will and testament. In witness whereof I have hereunto affixed my hand and seal this 31st day of October, A.D. 1884.

SARAH SMITH. [SEAL.]

"Signed, sealed and published by Sarah Smith to be her last will and testament in the presence of us who at her request and in her presence have subscribed our names as witnesses thereto.

ELIAS HATFIELD.

GEORGE W. HESS."

Defendant's "Now, we offer this paper, being a written declaration of Sarah E. Smith, to be followed by evidence that under this paper and in pursuance of it the defendant in this case took possession of the property now in dispute and is still there, and that Sarah Smith herself moved into the premises with him in pursuance of the intention stated in this paper and there remained for a long time, and that the defendant has at all times performed his part of the agreement indicated in this paper. Of course it all goes together. We don't offer this paper alone. This paper as a will would have no significance at all, but we offer the paper as the declaration of the plaintiff's grantor showing that she had agreed that her title should pass from her at her death, the paper being executory."

The entire offer was objected to as incompetent and irrelevant. Sarah Smith, the testatrix in the foregoing paper was alive and in the court room at the time of the offer.

By the court: Objection sustained, offer refused; exception.

The defendant offering no further testimony, the court instructed the jury that under the evidence their verdict should be for the plaintiff.

The jury returned a verdict for the plaintiff as directed. A rule for a new trial having been discharged, judgment was entered, when the defendant took this writ, assigning as error:

2. The refusal of defendant's offer.

Judgment reversed, and new venire awarded.

COUNSEL:

Mr. Edward Campbell (with him Mr. Geo. D. Howell and Mr. E. H. Reppert), for the plaintiff in error:

1. An agreement to devise land, in consideration of a covenant to support the devisor during life, followed by the execution of such a will, vests an equitable title in the devisee. Such an instrument is not revocable like an ordinary will, but is to be deemed a contract in writing within the statute of frauds, which equity may treat as creative of an estate in the devisee: Johnson v. McCue, 34 Pa. 180; 1 Redf. on Wills, *174, *175, n. 27; 1 Jarm. on Wills, *26; 1 Redf. on Wills, *169, *170, n. 21; Frederick's App., 52 Pa. 341; Perry v. Scott, 51 Pa. 119; Turner v. Scott, 51 Pa. 126-134; Rowan's App., 25 Pa. 292; Lant's App., 95 Pa. 279. Such a devise is an executed contract, on condition to take effect at the time specified, transferring the legal estate, and not a mere equity requiring to be perfected by another instrument: McCue v. Johnston, 25 Pa. 306.

2. No express form of words is necessary to make a contract for the sale of land. Any memorandum in writing indicative of the intent of the parties, and so precise as to enable the land to be conveyed, and the consideration and manner of its payment to be ascertained, is a sufficient contract in writing to be enforced specifically: Colt v. Selden, 5 W. 525; Sage v. McGuire, 4 W. & S. 229; McFarson's App., 11 Pa. 503; Parrish v. Koons, 1 Pars. 91; Grove v. Hodges, 55 Pa. 504. Such contract may be evidenced by a will made in pursuance of it: Brinker v. Brinker, 7 Pa. 53. The signature by the party seeking to enforce the contract is unnecessary: Lowry v. Mehaffy, 10 W. 387; Tripp v. Bishop, 56 Pa. 424; Johnston v. Cowan, 59 Pa. 275; Cadwalader v. App, 81 Pa. 194; McFarson's App., 11 Pa. 503; Shoofstall v. Adams, 2 Gr. 209; Simpson v. Breckenridge, 32 Pa. 287; Smith's App., 69 Pa. 474; Wilson v. Clarke, 1 W. & S. 554, 558; Worrall v. Munn, 5 N.Y. 229 (55 Am. Dec. 330); Smith on Contracts, 7th ed., *96; Grove v. Hodges, 55 Pa. 504.

Mr. A. D. Boyd (with him Mr. P. S. Morrow and Mr. D. M. Hertzog), for the defendant in error:

1. The refusal to admit in evidence the will of Sarah Smith was proper for the reason that she was still alive, of sound mind and present in court. The rejection of the will, with the proposal to follow it by the offer of evidence set out in the second assignment of error, was proper, because the offer did not present such a contract as would, if so proved, sustain a decree of specific performance by a court of equity. It is not such an executory contract as those referred to in Lowry v. Mehaffy, 10 W. 387; Tripp v. Bishop, 56 Pa. 424, and other like cases cited by plaintiff in error, in all of which the grantor bound himself by covenant to complete the grant by some future conveyance. The offer here, proposed to show no such agreement on the part of Sarah Smith. Her direction, by will, to whom her title should pass at her death, was revocable at any time: Rowan's App., 25 Pa. 292; the facts of which are quite similar to the present case.

2. The will was avoided, as to this property, by the deed subsequently executed and delivered to Tuit. The cases of McCue v. Johnston, 25 Pa. 106, and Johnson v McCue, 34 Pa. 180, do not apply, because there two writings were executed at the same time; a will signed by the owner of the land devised, and an agreement to pay an annual sum to the devisor, signed by the devisee, which two papers the court construed together as forming one contract. This disposes of the written contract as presented in the offer. Moreover, the offer did not present such a verbal contract as would be specifically enforceable. Two essentials were lacking: (a) It did not show that defendant took exclusive possession of the premises; it proposed to show that ...