Brandon v. Mckinney

233 Pa. 481 | Pa. | 1912

Opinion by

Mr. Justice Mestrezat,

We have carefully examined and considered the somewhat voluminous and complicated record in this case, and are of the opinion that the learned trial judge properly disposed of the case in his opinion of March 22, 1909, and subsequent opinions. The decree may well be affirmed on his opinions.

The controlling question is whether the real estate of the decedent which, by his will, had been converted into personalty, had been reconverted by the persons beneficially interested. The facts found by the chancellor, fully warranted by the evidence, justified him in finding that there had been a reconversion and that the beneficiaries had elected to hold the real estate as such. While the intention to reconvert must clearly and unmistakably appear, yet a direct election is not necessary. Any act or acts which disclose plainly an intention to hold the real estate as such is sufficient. It would be difficult to find in any other case acts of the parties which show more plainly an intention to reconvert real estate directed by a testator to be sold. The heirs and legatees, the parties beneficially interested, took control of the real estate in December, 1888, the year following the death of the testator, and leased the premises for oil purposes. Subsequently they leased for oil and gas purposes, and issued pipe-line division orders for oil procured from the leases. In April, 1906, all the interested parties made a deed, granting a right of way to a railway company across the premises. In these several acts they necessarily treated the property as real estate, and thereby clearly disclosed an election to reconvert it to real estate. The learned judge committed no error in holding that such acts on the part of the beneficiaries, covering a period of eighteen years after the death of the testator, were an election to hold the property as land and not as personalty.

The judgments entered against some of the parties after the election to reconvert bound their interest in the real estate, and the sales on the judgments passed the title of those parties to the purchasers. The learned judge correctly held that the reconversion dated from April 7,1906, and that judgments entered thereafter against the parties became a lien on the property.

There is no merit in the contention that the court below was without jurisdiction to entertain the bill for partition until the title of the parties had been determined in an action of ejectment. The question was recently before this court, and it was there settled against the position of the present appellants: Cooley v. Houston, 229 Pa. 495. There, as here, the question of reconversion depended upon evidence in writing disclosing the intention of the parties, and it was held that, it being a question for the court, a chancellor in a suit in equity could determine it as well as a judge sitting in a court of law trying an action of ejectment.

The question raised by the appellants as to the sufficiency of the averments in the bill must be ruled against them. The objection now made was not raised until after the testimony had been given before the chancellor, and the facts found and a decree made by him. The parties treated the bill as if it contained all the necessary averments, and produced testimony to sustain and defeat the issue thus made. It is now too late for the appellants to complain of the insufficiency of the pleadings.

The decree is affirmed.