30 Pa. Super. 389 | Pa. Super. Ct. | 1906
Opinion by
Mrs. Charlotte L. Davis died May 14, 1897, and by her last will and testament devised to her father, Archibald H. Jarvey, a, lot of ground with a dwelling house thereon erected, “ for the term of his natural life,” and, immediate^ after the death of the father, “ to her step mother, Ann Jarvey, during her natural life,” and, from and immediately after the death of Ann Jarvey, then the remainder to Jane M. Fenner, the defendant in this case. Archibald H. Jarvey died September 16, 1901, Ann Jarvey died March 16,1904, each having occupied the premises under the provision of the will during their respective lives, when Jane M. Fenner entered into possession of the real estate. On November 29,1904, Samuel M. Davis, the husband of the testatrix, gave notice that he claimed the premises as such husband in his right as tenant by the courtesy. A case stated was presented to the court below for decision. The question submitted
The defendant in this case did not have any right to the possession of the property in dispute, until after the death of Archibald Jarvey, and of Ann Jarvey. While the husband’s right vested at the death of his wife in 1897, if he chose to postpone the assertion of that right so as to permit Archibald Jarvey and Ann Jarvey to enjoy the possession during their lives, it did not in any manner prejudice any right of this defendant. There may have been sufficient reasons, from his standpoint, to warrant such a course towards them, and if Jane M. Fenner was not thereby induced to do something, to incur some liability by reason of such conduct, she was not misled to her injury. She may have hoped, and have even reasonably expected, that he would not assert against her, the right he was willing to waive in favor of others, but it was his privilege to deal so with his interest; and, without more, such non action on his part was not sufficient to extinguish his claim as against this defendant. So far as her right to the property is concerned he delayed putting forth his title from March 16, 1904, the date of Ann Jarvey’s death, and not from May 14, 1897, the date of Mrs. Davis’ death, as contended for by the appellee.
One who pleads estoppel must be one who has in good faith been misled to his injury. The rule is that one shall be es-
Under the purely equitable doctrines, unmodified by statute, there is, as it seems, no limit in point of time to a right to elect unless it can be shown that injury would result to third persons by delay: Pomeroy’s Eq., sec. 573, The mere passivity of the plaÍ2itiíf during the lives of Archibald Jarvey and Ami Jarvey could not affect the action or conduct of Jane M. Fenner, inasmuch 'as until their deaths she had no right to the possession, nor could it be known that she would live to claim it. If he could assert his title against Archibald Jarvey or Ann Jarvey, we can conceive of no reason why it should not prevail
The judgment is reversed and judgment is now entered in favor of the plaintiff with costs.