166 Pa. 38 | Pa. | 1895
Opinion by
It is admitted that Patrick McMullen, whom both parties recognize as the common source of title, died seized of the lot in controversy October 19, 1892; and that, by his last will, dated October 1, 1890, and probated October 29, 1892, he
This action was brought to recover possession of the alleged four-fifteenths interest of Edward McMullen in the lot devised as aforesaid, which plaintiff claimed to have acquired by purchase at sheriff’s sale on an execution issued November 1,1892, —on a judgment entered against Edward McMullen in his father’s lifetime,—and levied same day on his interest in said lot. It is conceded that plaintiff had no lien on said interest prior to November 1, 1892, when he caused the execution to be issued and levy made. It therefore follows that if the interest of Edward McMullen under his father’s will was legally divested before the date of said levy, the plaintiff acquired nothing by virtue of the said sale and sheriff’s deed. In substance, that was the defence relied on by the defendants. Their contention was that, after her father’s death, Mrs. Walsh determined to exercise the option, given to her by the will, to take her brother Edward’s interest in the lot on the terms and conditions therein expressed ; that her election to do so was fully consummated on October 31, 1892, by paymént of the $800, acceptance of the same by Edward aud giving the receipts put in evidence. There was no room for any doubt as to the facts of which this defence is predicated. They were clearly and conclusively proved by witnesses whose credibility was unquestioned, and whose testimony was not controverted or in any degree affected by any evidence in the cause. The controlling facts having been thus established, the learned trial judge affirmed defendants’ first point and directed a verdict in their favor. In this, we are not prepared to say there was any error. Mrs. Walsh had an undoubted right to exercise the option given her by the will. That she did exercise it and fully comply with the terms thereof before the levy was made
We find no error in the record that requires a reversal of the judgment.
Judgment affirmed.