Hanbest v. Grayson

55 A. 786, 206 Pa. 59, 1903 Pa. LEXIS 645

• Court: Supreme Court of Pennsylvania
• Decided: May 11, 1903
• Docket: Appeal, No. 227
• Status: Published

Opinion

Opinion by

Mr. Justice Mitchell,

The will of- testatrix after reciting that she had rented the property in question for three years, directed her executor “ in case of my (her) death before the expiration of said lease ” to collect the rents, etc., and then further directed him to give “the tenant three months’ notice before the expiration of his present term, and at said time, and upon the vacation of said property by the said Kane, I authorize my said executor to sell the said property,” etc.

In the next clause she expresses the desire that her “ estate may be settled and divided as soon as conveniently and legally may be after sale has been made of my said property.” And in the last clause she appoints an executor, and provides “ if I should live beyond the time that I have set for my executor to take charge of the above named property I authorize my executor with full power to carry out the above items and bequests at my decease.”

Under these provisions the intention of the testatrix is not really open to serious doubt. She desired her estate settled up and divided as soon after her death as it “ conveniently and legally ” could be done, and for settlement the sale of the property in question was necessary. She knew that the tenant could not be deprived of his possession under his lease, and therefore she directed her executor to collect the rents till the end of his term, but to give notice so that he should vacate possession at that time. She apparently did not desire to sell the property during her own life but that the executor should sell as soon as might be thereafter. In furtherance of this desire she added the clause as to what the executor should do if she should live beyond the time she had set for him to take charge of the property, i. e., beyond the end of the tenant’s then present term. In that event he was “ to carry out the above items and bequests at my (her) decease” that is, if the tenant was in possession under a new term the executor should collect the rents, etc., and give the necessary notice to regain possession at the end. In all this there was nothing more than the recognition of the tenant’s rights, and the direction to her executor to terminate them in the legal and orderly way so that the sale could be made promptly. The termination of the tenant’s possession was not a condition precedent or otherwise to the power of sale, but simply the removal of an obstacle which she supposed to stand in the way. As said by the learned judge below “ there was no provision in the will prohibiting a sale being made to Kane. There was nothing to indicate that,, if the lease had been terminated by agreement, or in any other way, previous to the expiration of the year, the sale should not be made to Kane.”

The election of the appellants to take the property as land was not made until Kane’s rights had been fixed by the contract of sale. It was therefore too late even if not otherwise ineffectual by the necessity of providing for the payment of legacies, etc.

Decree affirmed at costs of appellants.