Wilkinson v. Buist

• Decision Date: 18 February 1889
• Docket Number: 177
• Citation: 124 Pa. 253,16 A. 856
• Parties: R. A. WILKINSON v. ROBERT BUIST
• Court: Pennsylvania Supreme Court

16 A. 856

124 Pa. 253

R. A. WILKINSON v. ROBERT BUIST

No. 177

Supreme Court of Pennsylvania

February 18, 1889

Argued January 23, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 177 July Term 1888, Sup. Ct.; court below, No. 620 December Term 1887, C.P. No. 2.

On February 3, 1888, Robert Buist, Jr., brought assumpsit against Robert A. Wilkinson to recover the contract price of land under a written contract of sale between the plaintiff and defendant, dated June 9, 1887, wherein the plaintiff agreed to sell and the defendant to buy a tract of 129 acres in the 27th ward, Philadelphia, for the sum of $125,000, the contract providing: "The title to be good and marketable and clear of all incumbrance." Issue.

At the trial on May 2, 1888, it appeared that when the time of performance under the contract had arrived, the plaintiff tendered to defendant a deed for the property executed by himself and Helen Jane Buist and Emma L. Chambers, claiming that these three as tenants in common were possessed of a good and marketable title to the whole of the land described in the contract. This deed the defendant refused, upon the ground that the parties joining in the deed tendered were not possessed of a good and marketable title to the whole tract but only to undivided interests in the same, as tenants in common with Stella Buist and Jane Buist, who owned an undivided one sixth of the estate and an interest in remainder in an undivided one twelfth.

The plaintiff put in evidence the contract with the defendant and showed a good title in Robert Buist, Sr., who died on July 13, 1880, leaving a will dated March 3, 1877, duly admitted to probate, and which was as follows:

"1. I direct my just debts and funeral expenses to be fully paid and satisfied as soon as conveniently may be after my decease.

"2. I give and bequeath unto my dearly beloved wife, Ellen M Buist, my wearing apparel and all the furniture and provisions which may be in the house at the time of my decease.

"3. I will and direct that my executors hereinafter named shall pay the income and interest of the residue of my personal estate to my said wife semi-annually for and during the whole term of her natural life, and further that they shall allow her to retain possession of all my silver plate for the same period without giving security therefor.

"4. I give, devise and bequeath unto my said wife all my real estate whatsoever and wheresoever situate for and during the whole term of her natural life.

"5. I authorize and empower my said executors and the survivors or survivor of them at any time after my decease in their discretion to sell and convey in fee simple to any person or persons for such price or prices as they shall deem sufficient all or any portion of my said real estate whatsoever and wheresoever situate. It is further my will that the proceeds of all such sales of my real estate whenever made shall be held by my executors in trust for the uses and purposes declared in this my will in relation to the said real estate, and that the purchasers thereof shall not be held in any wise liable for the application or misapplication of the purchase moneys therefor. And I further direct that all investments and reinvestments of the proceeds of such sales as well as of my personal property and estate shall be made in first mortgages of improved real estate situate in the city of Philadelphia, in the public loans of the state of Pennsylvania, or of the United States, of the city of Philadelphia, or in such other securities as may be authorized by law. And the said executors shall have power to alter and change the investments of my said estate and to make all proper transfers of the securities held by them for that purpose.

"6. It is further my will and I do hereby direct, order and devise that immediately after the decease of my said wife, the whole of my real and personal estate including the proceeds of all such real estate as shall have been sold by my executors in the lifetime of my said wife shall be divided into six equal parts or shares, and three of such equal parts or shares (being one half part of my said estate real and personal) I hereby devise and bequeath unto my daughter Helen Jane Buist her heirs executors administrators and assigns, one other of such equal parts or shares I give devise and bequeath unto my son Robert Buist his heirs executors administrators and assigns, one other of such equal parts or shares unto Stella Buist and Jane Buist children of my deceased son John M. Buist their heirs executors administrators and assigns, and the remaining one of such equal parts or shares I give devise and bequeath unto Emma Louisa Chambers daughter of my said wife by a former marriage to hold for and during the term of the natural life of her the said Emma Louisa Chambers and upon her decease then I give and bequeath one half part of said last mentioned part or share unto my said son Robert Buist his heirs, executors, administrators and assigns, and the other half part thereof unto my said grandchildren Stella Buist and Jane Buist their heirs, executors, administrators and assigns.

"7. I nominate and appoint my said wife Helen M. Buist my said son Robert Buist and daughter Helen Jane Buist to be the executors of this my last will and testament.

"In Witness Whereof," etc.

It was then shown that letters testamentary upon said will were duly granted to the executors named therein, and that Helen M. Buist, the widow, died on February 26, 1881; that on July 9, 1883, after some proceedings upon their petition to the Orphans' Court, which were put in evidence, prout the same, but were not shown in the paper books, Robert Buist, Jr., and Helen Jane Buist, as surviving executors of the will of Robert Buist, Sr., conveyed the premises described in the contract to John J. S. Rodgers; and that subsequently by deed duly recorded, John J. S. Rodgers conveyed the same premises to Robert Buist, Jr., Helen Jane Buist and Emma L. Chambers. Having proved the tender of a deed from Robert Buist, Jr., Helen Jane Buist and Emma L. Chambers to the defendant, the plaintiff rested.

The defendant offered no testimony, but requested the court, MITCHELL, J., to charge the jury that

"The power of sale granted to the executors in the will of Robert Buist the elder was a power which expired upon the death of Helen M. Buist, the widow of said Robert Buist, the elder, and as it appears from the evidence that Helen M. Buist died on February 26, 1881, the attempted exercise of the power by the surviving executors in their deed of July 9, 1883, to John J. S. Rodgers failed to convey to him a good and indefeasible title, and the jury should, therefore, find a verdict for the defendant."

Which instruction the learned judge refused to give, and there being no facts in dispute he instructed the jury to find a verdict for the plaintiff, for the amount of his claim.

The jury then returned a verdict for the plaintiff for $90,739.76, and judgment being entered thereon, the defendant took this writ, assigning as error:

1. The refusal of the plaintiff's point.

2. The instruction to find for the plaintiff.

The judgment is reversed.

Mr. Richard C. Dale (with him Mr. Samuel Dickson), for the plaintiff in error:

1. An action by a vendor to recover purchase money against a vendee declining to accept the title on the ground that it is not marketable, is subject to all the defences which would be recognized by a chancellor upon a bill for specific performance. The plaintiff must show a title which the court not only believes to be good, but which is so certain that no court acting within the bounds of reason could declare to be otherwise than good: Swayne v. Lyon, 67 Pa. 436; Colwell v. Hamilton, 10 W. 413; Ludwick v. Huntzinger, 5 W. & S. 51; Bumberger v. Clippinger, 5 W. & S. 311.

2. A power to sell given to executors or trustees lasts only so long as is expressly limited by the terms of the will, or, if without express limitation as to time of exercise, then only so long as the purpose continues, for the accomplishment of which the power is granted. If the purpose is expressly declared upon the face of the will, no question of construction can arise; but if there is no express declaration of a purpose, then the whole instrument must be examined and the purpose deduced from a consideration of all the terms of the will, and these terms must be so construed as to give effect to the will as an entirety: Swift's App., 87 Pa. 502; Kaufman v. Hollinger, 4 W.N. 27.

3. In the present case we submit that a fair construction of the will requires that the power of sale granted to the executors should be exercised only during the life of testator's widow; that this power of sale, although granted nominally to the executors, was granted to them for no purpose connected with the proper duties of administering the estate qua executors, but was a power granted to them as incidental to a trust imposed upon them by the testator, continuing during the life of the widow and no longer.

Mr. Wayne MacVeagh (with him Mr. A. H. Wintersteen), for Jane Buist, intervening:

We have in the will of Robert Buist, Sr., a life estate given to the wife, a power of sale given to the executors, and an absolute devise over to certain beneficiaries. It is plain upon the adjudicated cases, that unless there is something very special in the will showing the contrary, this power fell with the life estate: Lantsbury v. Collier, 2 K. &amp J. 709. There cannot be a good execution of a power of sale, when the purposes for which it was created have ceased: Wheate v. Hall, 17 Ves. 86; Mortlock v. Buller, 10 Ves. 315; Wolley v. Jenkins, 23...