Tarr v. Robinson

• Decision Date: 30 October 1893
• Docket Number: 142
• Citation: 27 A. 859,158 Pa. 60
• Parties: Tarr et al., Appellants, v. Robinson et al
• Court: Pennsylvania Supreme Court

27 A. 859

158 Pa. 60

Tarr et al., Appellants, v. Robinson et al

No. 142

Supreme Court of Pennsylvania

October 30, 1893

Argued October 5, 1893

Appeal, No 142, Oct. T., 1893, by plaintiffs, Catharine Tarr et al., from judgment of C. P. Westmoreland Co., May T. 1890, No. 575, on verdict for defendants, Matilda Robinson et al.

Ejectment. [Cf. Gilbert's Ap., 85 Pa. 347, for construction of will.]

At the trial, before WHITE, P.J., of the 40th judicial district specially presiding, it appeared that James R. Tarr died in 1864, leaving a will by which he devised a portion of his farm "to my son, Melker Tarr, at thirty dollars per acre, the proceeds to be equally divided and paid to the rest of my children, in the same manner that they are to be paid by James R. Tarr and Rose Husband and to the same ones." Testator by previous clauses in his will had made similar devises to James R. Tarr and Rose Husband. The executors appointed by the will renounced, and letters of administration with the will annexed were issued to William G. Husband, testator's son-in-law, and James R. Tarr, one of his sons. The administrators went into possession of the real estate, in compliance with a direction in the will requiring the executors to rent the real estate until all of testator's debts were paid. Plaintiffs gave evidence tending to show that Melker Tarr refused to accept the devise made to him. In 1870, while the administrators were still in possession of the land, the thirty acres devised to Melker Tarr were sold by the sheriff on a judgment against him, and bought by E.J. Keenan for five dollars, under whom defendants claimed. At the time of the trial Keenan was dead, and certain of the residuary devisees of the testator were also dead. Melker Tarr was one of the plaintiffs of record, but at the trial he disclaimed, and suffered a nonsuit.

Under objection and exception Melker Tarr was rejected as a witness for plaintiffs to prove facts occurring prior to the death of Keenan. [1, 2]

When Samuel H. Null, one of defendants, was on the stand, defendants' counsel proposed to prove by him that about the summer of 1868, in a conversation with Melker Tarr, the latter told him that he was the owner of the thirty acres of land which is the subject of this controversy, or words to that effect, and that the same had come to him under the will of his father; this for the purpose of contradicting the testimony of the plaintiffs already given, and for the further purpose of showing, in corroboration of the other testimony of the defendants, that Melker Tarr had accepted the devise in his father's will.

Plaintiffs object to the offer for two reasons: first, that it is irreievant; second, he is one of the defendants in the action, and part of the offer here could not be evidence under any circumstances. Objection overruled and exception. [5]

The witness testified substantially as in the offer.

The court charged in part as follows:

["This case, however, was tried in this way: the plaintiffs showed ownership of this land by James R. Tarr's will in question, and then accompanied it with evidence to show it went into this residuary clause by showing that Melker Tarr never accepted it. Of course in that case it was primarily incumbent upon the plaintiffs to show a prima facie case of nonacceptance; the burden of proof primarily was upon them in making out their case to show nonacceptance.]

["Now, gentlemen, we have answered all the legal propositions submitted, and the question comes down for you to decide, did Melker Tarr or not accept this devise? If he did not, then your verdict should be for the plaintiffs for the fractional part of the land as appears in the paper which we will send out. If he did accept it, then your verdict should be for the defendants. From all of the testimony it is a question entirely for you to determine."]

Verdict and judgment for defendants. Plaintiffs appealed.

Errors assigned were among others (1, 2, 5) rulings on evidence; (3, 4,) instructions, quoting bills of exceptions, evidence and instructions.

Judgment reversed and a venire facias de novo awarded.

Paul H. Gaither, H. P. Laird, J. B. Keenan and J. H. Marchand with him, for appellants, cited: Wengert v. Zimmerman, 33 Pa. 508; Gilbert's Ap., 85 Pa. 347; Bennett v. Hetherington, 16 S. & R. 193; Kifer v. Brenneman, 1 Pa. 452; Ott v. Houghton, 30 Pa. 451; Ferree v. Thompson, 52 Pa. 353; Sheetz v. Hanbests, 81 Pa. 100; Dixon v. McGraw Bros., 151 Pa. 98; Clever v. Hilberry, 116 Pa. 431; Parry v. Parry, 130 Pa. 94; Palmer v. Farrell, 129 Pa. 162; act of May 23, 1887, P.L. 158.

James S. Moorhead, John B. Head with him, for appellees, cited: 4 Kent, 533; Brownfield v. Brownfield, 151 Pa. 565; Sutherland v. Ross, 140 Pa. 379; Duffield v. Hue, 129 Pa. 94; Langer v. Felton, 1 Rawle, 141.

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

OPINION

MR. CHIEF JUSTICE STERRETT:

It is now too well settled to admit of question that, upon the ground of implied benefit, the assent of a donee will be presumed; and the title will vest eo instanti the gift is made, even though he be ignorant of the transaction, and will continue in him until he rejects it. Hence the burden of proof is on those who allege refusal to accept: Skipwith v. Cunningham, 8 Leigh, 271; Read v. Robinson, 6 W. & S. 329; Jackson's Ap. 126 Pa. 105. As between Melker Tarr, the devisee in this case, and the residuary devisees, this burden would have been sustained by a simple verbal disclaimer, consistent of course with his other conduct, made to the administrators with the will annexed, who had possession and who represented all parties beneficially interested; and as there is no middle ground between acceptance and refusal, such disclaimer must have been final not only as between these parties but as to all those who claimed under them with notice. But assuming such disclaimer to have been made, were the purchaser at the sheriff's sale and those who claimed under him concluded by it? "The rule of caveat emptor applies to a purchaser at a judicial sale; but he is not bound to see what is not to be seen. He is protected by the recording acts; and secret defects in a title apparently good are to him no defects at all. Notice may be by record, by possession, or it may be given directly to the person sought to be charged with it either by...