Brown v. Boyd

9 Watts & Serg. 123

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1845
• Status: Published

Opinion

The opinion of the Court was delivered by

Kennedy, J.

The point presented for our consideration arises out of the will of James Porter, made on the 3d day of January 1775. Among other things, he thereby “gave and devised to his son William all the houses and buildings, of what nature and kind soever, that were situate at or about Peach Bottom, on his lands there, whether held by Maryland or Pennsylvania titles, and the land whereon they stood; and also as much land adjoining as was absolutely necessary for egress and regress; and also the land then occupied with the saw-mill, dam and races; and also all the advantages of the ferry, save what use his son Andrew might make thereof for his own private conveniency. And the residue of all the said Peach Bottom lands he gave and devised to his sons William and Andrew, their heirs and assigns for ever, as tenants in common, to be equally divided betwixt them according to quantity and quality, share and share alike.” The testator had other lands mentioned in his will, some of which he thereby disposed of specifically, and others he directed to be sold, and the proceeds thereof to be divided equally among his children. He also gave a number of money legacies; and after directing his executors to sell and convey his lands situate in Cumberland county, in Pennsylvania, for cash to the best advantage, he gives and bequeathes, in the close of his will, all the residue of his estate not already bequeathed or thereafter bequeathed, together with the cash arising from the sale of the lands in Cumberland, to be equally divided amongst all his children, whether male or female, married or single. After this residuary clause he gave to his daughter, Mary Ewing, £150, Pennsylvania currency, which is the only gift thereby made afterwards. The Peach Bottom lands devised to William and Andrew lay in Lancaster county, Pennsylvania, where William sued out a writ of partition from the Circuit Court thereof against Andrew, to December Term 1798, claiming partition to be made between them of all the Peach Bottom lands devised to them in their father’s will. A judgment of partition was obtained, and partition accordingly made thereof by the sheriff, with the aid of an inquest organized for that purpose, allotting and setting out by metes and bounds in severalty to Andrew and his heirs and assigns, 192 acres and allowance, part of the lands described in the writ of partition, together with a lot for a garden, containing part of an acre, and cut off from the eight-acre tract thereby allotted to William as part of his portion, in full of Andrew’s equal half or moiety of the premises described in the writ, and allotting and setting out also, in like manner, by metes and bounds in severalty, to William and his heirs and assigns, 168 acres and allowance, other part of the lands in the writ described, together with two tracts, one of eight-acres, more or less, reserving there-out that part thereof allotted to Andrew for a garden, and the other containing fifteen acres, more or less (being the same with the houses and buildings thereon, devised first above to William by the will of his father), to hold the same as his half or moiety of the premises described in the writ. William and Andrew took the exclusive possession of their respective shares thus parted and allotted to them; and William afterwards, on the 23d of June 1800, by his deed reciting the devises aforesaid to him, and to him and Andrew, by the will of his father, and the partition thereof made as above stated between them, for the consideration therein mentioned sold and conveyed to Nicholas Boyd in fee the said 168 acres, and the said two tracts of eight acres and of fifteen acres, containing together twenty-three acres, with the houses, buildings and appurtenances thereunto belonging. Nicholas Boyd, at the time of this conveyance, was married to the daughter of William, an only child, and had been put in possession of the property by William some time before the execution of the conveyance thereof to him. He held the same and remained in the possession until his death, in 1840, when his children, the defendants below, succeeded to the possession. On the 22d December 1800, Andrew sold and conveyed in fee all his portion of the Peach Bottom lands, allotted to him by the partition, to Vincent Stubbs. William Porter died in 1804, leaving Mary, the wife of Nicholas Boyd, his only child and heir at law, who died on the 30th of January 1840, leaving Nicholas Boyd, her husband, and five children by him, surviving. Nicholas Boyd died the 22d of December 1840, after which the fifteen acres, with the appurtenances thereunto belonging, were taken in execution and sold as his property, for the payment of his debts, as appears by the deed of John Eshler, Esq., then sheriff of Lancaster county, dated the 7th day of December 1844, to Slater Brown, the plaintiff in this case, who, by virtue thereof, claims to recover the same.

The principal objection made by the defendants to the plaintiff’s recovery is, that the fifteen acres claimed by him composed and embraced merely that part of the testator’s lands situate at or about Peach Bottom, with all the houses and buildings thereon, which were devised to his son William by the first clause of the will recited above, and vested in him, at most, only a life estate, seeing no words of inheritance are superadded thereto, or other words used expressive of a greater interest than a life estate ; and that the remainder or reversion of the testator’s estate therein, if disposed of at all by the will, was given by the last residuary clause therein, as above recited, to be equally divided amongst all his children. Indeed, it was at first said that it was not disposed of at all by the will; but that was not much pressed. But we are of opinion that the reversion in fee of the land in question passed by the clause which followed the devise of it to William immediately, whereby the testator declares, “ And the residue of all the Peach Bottom lands I give and bequeath to my sons William and Andrew, their heirs and assigns forever, as" tenants in common, to be equally divided betwixt them according to quantity and quality, share and share alike.” Now it is clear that the fifteen acres in dispute formed a part of what the testator called his Peach Bottom lands, and as he had only given a life estate in the fifteen acres to William, there remained a residue thereof, that is, the reversion in fee, to be disposed of; and when he declares, by the immediately succeeding clause, “ the residue of all the said Peach Bottom lands I give and bequeath to my sons William and Andrew, their heirs and assigns forever,” &.c., it not only appears to me that the reversion in fee in the fifteen acres is thereby passed to William and Andrew as tenants in common, but that it was intended by the testator that it should be so. It has been argued that by the term “ residue” the testator only intended to designate and give that portion of his Peach Bottom lands which had not been disposed of previously in any way by his will; but giving the residue of all the Peach Bottom lands to his two sons in fee would seem to embrace all interest in the whole of them which he had remaining to dispose of; and so include the reversion in the fifteen acres, as well as his entire interest in all the other Peach Bottom lands belonging to him. If authority be wanting to support this construction, we have it in Wheeler v. Wolroon, (Alleyn's Rep. 28), where the testator, seised of the manor of D, in Somersetshire, devised the manor to A for six years, and part of his other lands in fee; and then devised as follows : “ And the rest of all my lands in Somersetshire, or elsewhere, I give to my brother and to the heirs of his body.” It was objected that the word “ rest” extended only to such lands as were not devised before. But it was adjudged by the court that the reversion of the manor passed by the devise “ of the ?'est of all my lands,” &c. Now it will scarcely be imagined that if the term “ residue,” instead of “ rest,” had been used by the testator in the case just cited, the decision of the court would have been different from what it was. In truth, the two cases are so strikingly alike, that it is seldom we meet with two so much so.

The same principle has been adopted and followed in other cases, vide Willowes v. Lidcot, (2 Vent. 285, 286); S. C., (Carth. 50); 3 Mod. 229; Litton v. Faulkland, (2 Vern. 621). So in Cooke v. Gerrard, (1 Lev. 212), it was admitted distinctly that the reversion passed by the devise of “ all other his lands not before devised or otherwise settled.” And in Harper v. Bean, (8 Watts 471), where the testator devised to his wife the farm, fulling-mill and carding-machines on which he lived; then all his personal property; next, two lots of ground; and immediately, by a sweeping clause, he gave to her “ all his cash, notes and book accounts, with whatsoever is not named that he has any right or claim to, cither in law or equity,” and dosed by appointing an executor; he had no real estate beside that described in his will: this Court held that the fee simple estate passed in the lands given to the wife by the last recited clause. (See the cases there cited.) The whole tenor of the will, in the present case, would seem to favour this construction of it, as it appears therefrom that it was the intention of the testator to give and divide the whole of his Peach Bottom lands between his two sons, William and Andrew, to the exclusion of all his other children. It can scarcely be believed that he could have intended to include the land and buildings in dispute in the last residuary clause of his will, which divides all equally that is thereby given among his children generally; a thing which could not have been effected well, as to the property in question, without converting it first into money by a sale thereof, as he directed in regard to his Cumberland lands. But, having ordered no sale thereof, the presumption would seem to be, that he did not intend to include it in his last residuary devise. It is also apparent, from the partition made between William and Andrew, that they considered themselves tenants in common of the fee in the whole of the Peach Bottom lands, in reversion at least, if not in possession, and as such had partition made of the whole between them. Each accordingly took exclusive possession of his moiety as divided and set apart by metes and bounds. William, in 1800, sold and conveyed all he got by the partition, including the land in dispute here, to his son-in-law, Nicholas Boyd, who held the same in possession as the absolute owner thereof in fee until his death, in December 1840, a period of upwards of forty years. It would seem to be strange if, after such a holding of the land as the owner thereof, it would or could not be made liable for the payment of his debts. For anything that appears to the contrary in the case, the Statute of Limitations would have given him an indefeasible title in fee to the-property, and have rendered it liable for the payment of any debts owing by him at the time of his death. It was contended by the counsel for the defendants, that they, being the heirs at law of Mrs Boyd, the wife of Nicholas Boyd, and the heir at law of William Porter, had a title paramount to that which Nicholas Boyd derived by his deed of conveyance from William Porter. But it cannot be, according to the construction given by us to the will of James Porter, the testator, the original owner of the property, that the defendants can have any claim or title paramount to that which Nicholas Boyd derived from William Porter; for they have no claim except w’hat must have descended from their mother, who certainly had none unless it descended from her father, William Porter; but he conveyed all the right which he had or was vested with, as to the fee, either in reversion or in possession, in 1800, to Nicholas Boyd, and consequently nothing remained in him to descend to Mrs Boyd or anybody else. We therefore consider the plaintiff entitled to recover the possession of the property in dispute. The judgment rendered by the court in favour of the defendant is reversed, and judgment given by this Court for the plaintiff.

Judgment reversed.