Curty v. Monnin

14 Pa. Super. 102 | Pa. Super. Ct. | 1900

Opinion by

Beaver, J.,

Assuming for the moment that the testator was the owner in fee of all the land of which he was in possession at the time of his death, all the requirements of his will would be met by what is known as the Long line from the maple south to the Brawley line. This would give to the plaintiff twenty-six and one half acres instead of twenty-five, as devised by the testator in his will, and forty-eight and one half acres to the defendant instead of forty-six. The testator at the time of the making of his will and his heirs for some time subsequently seemed to have lost sight of the fact that in the Virginia Monnin lot of twenty-seven acres he had but a life estate and that as to it nothing passed by his will. As to the boundary, however, which he established between the lots of the plaintiff and the defendant, it must be run and held as if the title to the Virginia Monnin lot passed by the devise to the defendant. To hold otherwise would be to apply equitable principles to the construction of the will which would lead to endless difficulties. If an attempt were made to divide the lots devised to them between the plaintiff and the defendant, the application of equity must be carried further and include all the devises. This would be interpretation run mad.

The line fixed by the testator in his will as constituting the east line of the plaintiff’s lot and the west line of the defendant’s lot begins at a maple tree about which there is no dispute. It runs from the maple tree “south by Joseph Monnin’s land and along south (?) line of Brawley’s land,” and as if further to designate the exact course of the line the testator devised to the defendant “the barn in the line between said Joseph and said Louis A. Curty.” The defendant, in running the Dutton line, endeavored to comply with the description contained in the will by beginning at the maple and running just west of the barn and continuing the same course to the Brawley line, arguing that this is a practical compliance with the terms of the will as to the expression “ barn on the line ” but, if this were the correct line, there would have been no necessity for his making a specific devise of the barn to the defendant, because it would have been his already, being upon his land. The Long line which seems to have been acquiesced in at the time it was run is the only one which satisfies the description contained in the will and, as the trial judge in his charge very properly said, as complained of in the fourth assignment of error: “The legal construction of the will is for the court and we say to you, as a matter of ■law, that there is not such an ambiguity in this will, under the evidence in this case, as would warrant us in saying to you that the defendant’s contention is correct. We think that the terms of the will fix the line beginning at the maple tree and passing south and presumably upon that theory the parties agree that it is practically on what is known as the Long survey.” The defendant erected part of the fence upon tins line, the plaintiff the remainder. The defendant, having occupied the premises previously, surrendered the possession up to this line to the plaintiff, after the death of the testator. Having done so, he could not of his own motion again take possession without the consent of the plaintiff. In attempting to do so he became a trespasser.

The answers to points for charge complained of were correct and the charge, taken as a whole, was in no respect erroneous. This sufficiently disposes of the several specifications of error and the judgment is affirmed.