DeWitt v. DeWitt, Appeal, No. 316

Appeal, No. 316 | Pa. | Apr 21, 1902

Opinion by

Mr. Justice Brown,

In her bill for an account of the rents, issues and profits of the real estate of her deceased husband, and for the assignment of her dower, the appellee included an undivided sixth in what was known as the Putnam street property, of which he had not died seized, but which was conveyed to his estate on June 19, 1890, more than ten years after his death. The consideration was $1.00 and “ other property deeded ” to the grantors, and it passed to them from the decedent’s estate. The master was of opinion that the presumption was that the “ other property deeded ” in exchange for this one-sixth interest was land of which the husband had died seized, and that neither F. W. DeWitt, the son of the decedent, nor the estate of Perry S. Billings, his successor in title, could be heard to question the right of the widow to demand her dower in it after it had been so taken in exchange for land of which she had been dowable. This conclusion of the master, sustained by the court, was based upon the analogy of the common-law rule, that, if the husband seized of an estate of inheritance, exchanged it for other lands, the wife should not have the dower of both estates, but should be put to her election: Co. Litt, 31 b.; 2 Bl. Com, 129; 4 Kent, 59; 2 Kerr on Real Property, 797. With us, as long ago as Kelly v. Mahan, 2 Yeates, 515" court="Pa." date_filed="1799-12-15" href="https://app.midpage.ai/document/kelly-v-mahan-6309209?utm_source=webapp" opinion_id="6309209">2 Yeates, 515, it was held that dower lay for lands held by improvement right alone, the court saying, “ We have gone too far into the improvement doctrine, to exclude a widow from her claim of dower of lands, held under such equitable, though imperfect title, so frequently recognized by the laws and usage of this state; ” and in Pritts v. Ritchey, 29 Pa. 71" court="Pa." date_filed="1857-07-01" href="https://app.midpage.ai/document/pritts-v-ritchey-6230375?utm_source=webapp" opinion_id="6230375">29 Pa. 71, it was held that an equitable title was equivalent to a legal seisen. The finding that the appellee was dowable of this sixth interest was correct, and, but for error in directing that she was entitled to an account of the rents, issues and profits from the death of her husband, committed in view of a fact which ought to have been found, the decree appealed from would not be disturbed.

Counsel for the appellant, W. P. Billings, administrator of the estate of P. S. Billings, deceased, asked for a finding of the fact that, from the death of D. D. DeWitt, on February 19, 1880, to the death of F. W. DeWitt, his son, on June 12, 1899, the widow had allowed and trusted the son, as her agent, to collect the rents, issues and profits of the real estate; and, having assumed that the finding of fact would be as requested, the master was asked to conclude, as a matter of law, that, the widow having elected to take her share of the rents, issues and profits accruing from the death of D. D. DeWitt to the death of F. W. DeWitt, the son and heir, who had collected the same as her agent, she is not now entitled to an account of them during that period. If the fact should have been found as requested, the legal conclusion asked for would inevitably have followed; for it would be most inequitable to compel the purchaser of the real estate of D. D. DeWitt, deceased, to pay his widow the rents, issues and profits for twenty years, after she had allowed her son, as her agent, to collect them during that period and undertook to repudiate his agency only after he had died and she discovered that he had squandered or misappropriated what he had collected. The widow herself was the witness upon this question of the agency of her son, and but one inference can be drawn from what she says. Her testimony was as follows: “ Q. You permitted your son, F. W. DeWitt, to collect all the rents and take all the purchase money and all the issues and profits -from the real estate that your husband owned at his death, in 1880, up to the time of the death of F. W. DeWitt, in 1899 ? A. I permitted him to because he was administrator and done the business. He didn’t ask me whether he could do it or not. I permitted him to go on and do it. I didn’t make any demand on him to pay them over, but I expected him to. I expected him to pay my share some time. ... Q. If Frank DeWitt had not died, it was not your intention, was it, to demand any part of the rents, issues and profits out of these lands in controversy from F. W. DeWitt? A. I expected, if he lived, to have something left for me. I allowed him to collect these rents, issues and profits because he was doing the business, because he was administrator of the estate. Q. He was collecting the rents as your agent, was he ? A. I suppose that was what it would be, wouldn’t it, Mr. Frear? I didn’t make him pay my share, I suppose, because I was too easy with him.” She further testified: “ 1 didn’t object to his taking the rents, issues and profits, and purchase money, because he did the business, and I supposed he would do what was right. He was administrator.”

There is nothing doubtful in what the widow says about the son’s collection of the rents and profits ; and, if the only conclusion that could be drawn from her testimony was not drawn in the court below, we must draw it here. It is not the case of a finding on disputed facts, or involving the credibility of witnesses, which will not be disturbed except for clear error committed; but it is a manifest failure to find the only thing that could have been found from the admissions of the widow. True, she may not have formally, nor by any writing, constituted her son her agent; but she so regarded him and allowed him to so act for her in the collection of the rents and income from her husband’s estate. It is, then, our duty to correct the reasoning and conclusion of the master and court below on the appellee’s admissions: Phillips’s Appeal, 68 Pa. 130" court="Pa." date_filed="1871-05-08" href="https://app.midpage.ai/document/phillipss-appeal-6234103?utm_source=webapp" opinion_id="6234103">68 Pa. 130; Sproull’s Appeal, 71 Pa. 137" court="Pa." date_filed="1872-07-01" href="https://app.midpage.ai/document/sproulls-appeal-6234370?utm_source=webapp" opinion_id="6234370">71 Pa. 137; McConomy v. Reed, 152 Pa. 42" court="Pa." date_filed="1892-11-11" href="https://app.midpage.ai/document/mcconomy-v-reed-6241111?utm_source=webapp" opinion_id="6241111">152 Pa. 42. The master’s second finding of fact, confirmed by the court, is reversed, and the finding now is, that, between the death of D. D. DeWitt, February 19, 1880, and June 12, 1899, F. W. DeWitt, as the son and agent of the appellee, collected the rents, issues and profits arising from the real estate.of the deceased. The fifth, sixth and tenth assignments are sustained. The twelfth assignment is sustained to the extent of directing that the appellee pay all the costs in the accounting branch of the case and one third of the costs in the partition branch.

The decree is reversed find the record remitted, that the errors in the account stated may be corrected in accordance with the views expressed in this opinion, the costs on this appeal to be paid by the appellee.