229 Pa. 495 | Pa. | 1911
Opinion by
This was a bill filed for partition of 162 acres of land in Lawrence county. The case was heard on the bill and answer, no replication was filed and no testimony was taken. The facts, therefore, appear by the pleadings.
Hamilton Houston owned a farm of 162 acres in Lawrence county. The title passed from him, apparently by deed, to his two sons, James and William, on or about May 30, 1876. On that date the sons gave him a mortgage in the penal sum of $10,000 conditioned for the pay
Hamilton Houston died, testate, in 1892 leaving to survive him a widow, who died in 1906, one son, William D., and six daughters, one of whom, Mrs. Clark, died in February, 1907. By his will, made in 1880 and probated in September, 1892, Hamilton gave to his widow the use of a room in the farmhouse and also “whatever is necessary to her comfortable support and maintenance in the manner of life to which she has been accustomed.” He then devised to William “sixty-two acres of the east end of the farm on which I now reside,” describing it by metes and bounds, and to his six daughters “the remainder of my farm .... aforesaid” describing it as adjoining the part devised to William, “and containing one hundred acres more or less.”
The house was on the sixty-two acre tract, and William took and has retained possession of the tract, subject to his mother’s rights, and has made valuable improvements. The daughters took and have retained possession of the 100 acre tract and have received the rents and profits. Neither William nor the daughters ever asserted any claim to the part of the land devised to the other, until shortly before the filing of the present bill.
This bill was filed early in 1908 by the five daughters
William Houston, one of the defendants, contends (1) that he held the sixty-two acres adversely to the plaintiffs and hence they are not entitled to have partition; (2) that they are now («topped from making their present
The learned court below held that no adverse title in William was shown, such as ousted the jurisdiction in partition; that the alleged election did not contain the necessary elements to constitute an estoppel; and that the improvements made on the land, the payment of taxes and the receipts of the rents and profits could all be ascertained and adjusted in this proceeding. The court further held that the daughters could retain their shares in James’s estate under the intestate laws, and also take under the will to the extent that the testator had an estate to give them. A decree was accordingly entered as prayed for in the bill, and a master was appointed to make partition. William D. Houston, the defendant, has appealed from this decree.
We agree with the learned court below that the answer sets up nothing which would oust its jurisdiction to make partition of the farm. The facts appear by the bill and answer, and there was no adverse possession nor adverse legal title shown. There is no issue of fact raised. The bill avers the title at the death of Hamilton Houston as set out above. He had the title in fee simple to only the undivided half of the farm. By virtue of the deed from Eliza J., the widow of James, he also had her interest which was a life estate in the one-half of James’s undivided half, and he and his wife had a life interest in the other one-half of James’s undivided half interest. After the life interests, William and the daughters took James’s' undivided half interest in remainder. The daughters aver this legal title in them and with their interests under the will make it the subject of the bill for partition. In his answer, William does not deny that at the death of his father the title was different from that alleged in the bill, nor does he assert any facts tending to show an adverse legal title in himself. The material averments of his answer are as follows: ‘‘Immediately upon the death of the said Hamilton Houston I entered upon the full
There is no dispute as to the undivided half which William owned and conveyed to his father. The latter unquestionably had a right to devise that interest in the farm. The dispute arises over the other undivided half, owned by James at the time of his death. It will be observed that the answer does not deny that James died intestate owning the undivided one-half of the farm, and that his interest was not conveyed to his father. Then, as disclosed by the pleadings, if there was nothing else to prevent, the plaintiffs and the defendants would take James’s undivided half under the intestate laws and the court had jurisdiction to make the partition. The only ground for the contention that William holds the sixty-two acres adversely to the plaintiffs is that, having accepted the 100 acres devised to them by their father and retained it until the present time, the plaintiffs are bound by this action, and the equitable doctrine of election prevents them from now asserting their right to James’s interest. There is, therefore, no question of fact raised by the pleadings to be adjudicated. It is simply a question of law under the facts admitted by the pleadings
There is no doubt that the plaintiffs on the death of their father were put to their election whether they would
We do not agree with the contention of the defendant, Houston, that the plaintiffs are estopped from asserting their claim by reason of their conduct in accepting the devises and bequests made to them in the will. It is averred in the amended bill that prior to January, 1906, ■the plaintiffs had no knowledge of the fact that their brother James Houston died seized of the undivided one-half interest in the lands in question, and that in all their acts and transactions subsequent to the death of their brother and father they understood and believed that the full title to the lands was vested in their father at the time of his death. This is not denied in the answer. If, therefore, it be conceded that the acts of the plaintiffs subsequent to their father’s death in accepting the devise of the 100 acres amounted to ah election, it is clear that it was done in total ignorance of a material fact, a knowledge of which was necessary to enable- them to make an intelligent choice. In such case it is settled that the party making the election is not bound by his act: Miller’s Est., 159 Pa. 562; Woodburn’s Est., 138 Pa. 606; Cox v. Rogers, 77 Pa. 160; Dickinson v. Dickinson, 61 Pa. 401; Kreiser’s App., 69 Pa. 194. It was upon this ground that the learned court below held that they were not estopped from now asserting their rights to their brother James’s interest in the land, and that they could maintain this bill for partition. In its final opinion, the court says: “With this proposition (that the plaintiffs were bound by their election and estopped from making a claim contrary to the will) we could agree if the daughters had known their rights in the premises at the time they entered into possession of the one hundred acres; but at that time they did not know that their brother James had died seized of an undivided one-half of the .one hundred and sixty-two .acres.”
Having been relieved from the effect of their acceptance of the provisions of the will, and it now being their duty to make their election, we must treat the action of the plaintiffs in demanding partition of the farm in accordance with their interests in James’s undivided one-half thereof finder the intestate laws as an election to reject the benefits conferred by the will. They had full knowledge of all the facts at the time they filed this bill, and in thus asserting their right to James’s interest in the real estate they must be regarded as electing to take such interest in the property instead of the devise and legacy given them by the will. They cannot, however, take James’s interest under the intestate laws without compensating their brother William for his disappointment in not receiving the benefits given him by his father’s will. To the extent that he is injured by their election to take against the will he is entitled to compensation out of that portion of the estate which was devised or bequeathed to the plaintiffs. They cannot hold the share of their father’s estate devised or bequeathed to them and at the same time defeat the devise given to William. Equity will compel them to make compensation to William for his disappointment. Of the two inconsistent rights, they may take but one, they cannot take both. The condition imposing the obligation of an election says that the donee shall confirm the will, or else, out of the testator’s property given to him by the will, he shall make compensation to the third person, who is disappointed by his choice: 1 Pomeroy’s Eq. Jur. (2d ed.), sec. 467. In Lewis v. Lewis, 13 Pa. 79, Chief Justice Gibson says (p. 82): “Now, all the authorities show, that equity relieves, in a case of the kind, on the ground of trust. The devise passes the legal title; but a chancellor holds the recusant devisee bound, as a trustee, to com
We are of the opinion that the learned court was right in holding that it had jurisdiction to make the partition and that the acceptance by the plaintiffs of the devise under the will, having been made in ignorance of the facts necessary to an intelligent election, was not binding upon them and did not estop them from asserting their rights when they became fully advised of the facts. We think, however, that the court was in error in holding that they were entitled to take their interest in James’s undivided one-half of the estate and also an interest under the will without compensating their brother William to the extent of his disappointment. The case must, therefore, be remanded that it may be proceeded in the court below in accordance with the views herein expressed.
The decree is reversed with a procedendo.