Morris v. Jameson

2 Pen. & W. 399

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1831
• Status: Published

Opinion

The opinion of the court was delivered by

OibsoN, C. J.

By an agreement under seal, two brothers,, Thomas and William, exchange possession of farms, which it is supposed their father intends to give them respectively by his will, Thomas throwing in apart of Ms own land, which, though' an undivided interest, I shall call fifty acres. In accordance with this disposition of the brothers themselves, the father makes his will, leaving to each immediately, or through the intervention of trustees, the farm he had intended for the other, and desiring Thomas to make assurance of the fifty acres pursuant to the agreement. After this, William dies living the father, who, by codicil/ directs his executors to sell the fifty acres, and with the proceeds, pay certain notes indorsed by the father, and discounted by William at the York Bank, as well as a debt due from the estate of WUliatn to Thomas; and apply the residue to the trusts in favor of William’s children. The father dead, Thomas conveys the fifty acres to the trustees of William’s children; and the administrators of William, who were the defendants below, having, procured it to be sold under an order of the Orphans’ Court, resist the claim of the plaintiff, as one of his general creditors: so that the question is, whether William had such an incipient estate in th© fifty acres as may he subjected to satisfaction of his debts; and it requires but a moment’s consideration to determine that he had not. The exchange operated in the life-time of the father, if at all, alike on all the lands embraced by it — as well on the’fifty acres, as on the parts expected to be ultimately acquired from the father — and consequently only on the possession, as all beyond that, depended on the expected confirmation of the father, without which the subject matter was one, over which the parties could have no control. Had not the father testified his assent to the exchange by giving the two farms in conformity to it, the whole would have remained’ inoperative, even had William survived him; and Thomas'might, in that event, have regained the fifty acres, of which he eotfld not be deprived without having received the stipulated consideration. The act of the father then, which was necessary .to assure this consideration to Thomas, came too late to vest a title to the fifty acres' in William, in his life-time. The entire consideration and estate having to move from the father to William, it is impossible to separate the fifty acres from the other lands included in the devise to him; and as that became lapsed by his death, no interest in any part of the lands, the whole being an expected gratuity, ever vested in him; The fallacy with which the mind perplexes itself, is, in supposing that there is an inchoate interest in the parties, binding them'in thé mean time, and wanting nothing but the confirma-lion of the father, supposed to have since been obtained, to mate It,by relation, complete and indefeasible; which according to Carkhuff v. Anderson, 3 Bin. 4, may be subjected to the demands of creditors. But there could be no inchoate interest in the lands still owned by the father, nor was the exchange obligatory as respects these, because the parties had not the color of an estate to be bound by it in the life-time of the father, further than regarded the immediate occupancy. If then the agreement was inoperative in the life-time of William,-as regards the lands to be acquired from the .father, how can it have been less so as regards the fifty acres, the vesting of which, by the exchange, depended on the vesting of the consideration by the will? But the exchange was in fact not ratified in all respects, the father’s testamentary disposition not being altogether in accordance with it. It was certainly ratified so far as regards the lands expected to be acquired from him, but on. condition that the fifty acres should be sold by his own executors, instead of going to the heirs of William, as an inheritance vested in him in his life-time. His right thus to dispose of it, is not to be questioned, as Thomas and the children of William have eaeh taken a benefit under the will; and so far as regards William’s creditors, he was at liberty to assent to the exchange on his own terms, or not at all. William had given no consideration for an equity, and the legal estate had not been conveyed to him.

The conveyance to the trustees vested the estate in his children paramount to any supposed interest in William himself; and the will, having disposed of it in a way whieh neither the children nor the creditors of William have a right to question, it follows that there was no estate in William to answer his debts. Whether the parties really interested will confirm the sale by accepting the purchase money under it, instead of insisting on a sale by the executors, is for them to determine: our business is to decide between the parties on the record, between whom it is clear, 'there cannot be a recovery.

Judgment of the court below reversed, and judgment here for the defendants below.