Torrance v. Torrance

• Decision Date: 14 January 1867
• Citation: 53 Pa. 505
• Parties: Torrance <I>versus</I> Torrance <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 505

53 Pa. 505

Torrance versus Torrance et al.

Supreme Court of Pennsylvania.

January 14, 1867.

ERROR to the Court of Common Pleas of Westmoreland county.

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H. P. Laird and H. D. Foster, for plaintiff in error, cited Pierce v. McKeehan, 3 W. & S. 280; Hill on Trustees 83, 404; Woods v. Woods, 1 M. & Cr. 408; Act of March 29th 1832, § 31, Purd. 289, pl. 105; Pamph. L. 198; Rhoads' Estate, 3 Rawle 420; Act of February 24th 1834, § 59, Purd. 304, pl. 192, Pamph. L. 84; Dean v. Fuller, 4 Wright 474; Todd v. Campbell, 8 Casey 250; Noel v. White, 1 Wright 523; Graham v. Pancoast, 6 Casey 98.

E. Cowan, for defendants in error, cited Act of February 24th 1834, §§ 12 and 13, Purd. 282, pl. 61, 62, Pamph. L. 75; Poorman v. Kilgore, 2 Casey 365; Todd v. Campbell, 8 Id. 250.

The opinion of the court was delivered, January 14th 1867, by AGNEW, J.

The plaintiffs below claimed title as the children of Samuel Torrance, under the will of their grandfather Hugh Torrance, Sr., who bequeathed to them the proceeds of sale of the remainder in 100 acres of land, devised to their father Samuel Torrance during his lifetime. The remainder of the land was ordered by the will to be sold after Samuel's death, and the proceeds divided among his children. About two years before his death his children, by deed, elected to take the land itself instead of the money. It is now insisted in argument that this election was invalid, because there was one son, Matthew, who had not joined in making the election or in bringing suit, and who had died intestate and without issue. Whether there is anything in this point we have no means of judging. It was not made in the court below so far as the record shows, and no facts appear in the record to raise it. All we have in the record is the admission that the plaintiffs were the children of Samuel Torrance, and that the deed of election was by the children of Samuel Torrance. It is true the docket entry of the action informs us that Matthew Torrance died without issue and intestate, his death suggested, and the other plaintiffs are his heirs. But when he died, or whether he was a party to the deed, is not mentioned, and no copy of the deed is furnished upon the paper-book. The question is not noticed by the judge in his charge, and no point upon it was made by the defendant. If the defendant intended to embrace it in his point requesting the court to charge the jury that from all the evidence in the case the plaintiffs are not entitled to recover it is clear the attention of the judge was not drawn to this question or there was no evidence to raise it, for his answer has exclusive reference to the question of fraud, which was the great point in the trial of the cause. It is impossible for any court to perceive every aspect of a cause which may possibly be presented in the evidence, and if counsel will not fairly raise the question in the court below, we ought not to be asked to reverse because the point put to them may, like a drag-net, sweep everything before it.

Nor is the question of a trust for the children of Samuel during his lifetime, a practical question in this case. If it be granted that the devise to Samuel Torrance and his wife, "for their and their children's support," created a trust for the children's support, enforceable in equity, it bears not on the present action, which was brought after Samuel's death; and not to enforce the trust, but upon their estate in the remainder, which took effect, not as a trust, but as a legal interest in the proceeds of sale, converted by their election into an estate in the land itself. The question, therefore, has now no practical bearing on the present controversy, and we are brought at once to consider the title of the defendant below, the plaintiff in error.

His purchase of the life estate of Samuel Torrance at the sheriff's sale vested in him no other title; the life estate of Samuel; as such, only being sold on the judgment against him for his own debt. The defendant below enjoyed this estate during its whole extent. His next title is that acquired under the Orphans' Court sale. And here we think the court below erred in favor of the plaintiff in error in holding that he derived any title under that sale. It is a conceded principle that the acts and decrees of the Orphans' Court, within its...