13 Pa. 533 | Pa. | 1850
The opinion of the court was delivered, by
The learned judge thought proper to instruct the jury, that on the whole evidence the defendant was entitled to a verdict. The charge is undoubtedly obnoxious to the objection that it took from the consideration of the jury the credit to be attached to the testimonyp of Jacob Hiestand, .a witness relied on by the defendant, in support of part of his defence; and if there was nothing else in the case, this alone would entitle the plaintiff to a reversal of the judgment. Rut excluding this testimony, the question arises, whether the court erred in giving a peremptory direction to the jury to find for the defendant. It is said the court placed the instruction on the ground that the statute of limitations was a bar to the plaintiff’s recovery. Rut be this as it may, this is immaterial, as we have nothing to do with their reasons. If the judgment-is right, it cannot be- disturbed. A right judgment may be, given for a wrong reason; and when, no injury is done to the complainant, the judgment must be permitted to stand.
Several grounds of defence were taken at the trial, one of which
The plaintiff contends that when a testator devises real estate to executors to sell, on a certain contingency, if the sale be made before the contingency happens the sale is void, and conveys no title to the purchaser. For this position he relies on Smith vs. Folwell, 1 Bin. 546; Sweigart vs. Frey, 8 S. & R. 299; Loomis vs. McClintock, 10 W. 274, and Hay vs. Mayer, 8 W. 203.— That this is true, as a general proposition, cannot be denied; nor am I disposed to quarrel with the position of Lord Coke, who takes it for granted, Co. Lit. 113, that where there is a devise to A. for life, and that after his decease the estate shall be sold, the sale cannot be made during A’s life, but must be delayed till his' decease, although that opinion Mr. Hargrave, in note 2, Co. Lit. 113, shews to be at least a doubtful point, on authority, and is in direct opposition to the case of Uvedale vs. Uvedale, 3 Atk. 117. The devise was to the wife for life, and after her death the testator willed that the same should be sold, and Lord Hardwicke said that the words, after her decease, were not put in to postpone the sale. It is true, that in a case before the Court of Exchequer, in which the case of Uvedale vs. Uvedale was cited, where the devise was to A., the testator’s wife, for life, and after her decease a power to trustees to sell and pay the money among the children of B., who had an infant child then living, the court held, that a sale could not be made till after the widow’s decease, Meyrick vs. Coutts, Exchequer, 8, July, 1806, Ms. vide Sugden on Powers, 350, sec. 7. The reason for which the judgment was rendered is not given in Sugden on Powers. I cannot, therefore, say on what grounds they proceeded, although, if I may be allowed to conjecture, it was because the proceeds were to go to the children of B., at the time of her death, B. being living, some of whom might not have been in esse at the time of the happening of the contingency. The bill, which was an amicable one, was filed by the widow, against the trustees and the infant, for an immediate sale. Had the widow been the only person in interest, the decree would, I am induced to believe, have been otherwise. A review of the authorities, at any rate, indicate that even when no consent is ■ given, the power to sell is at least doubtful. ■ None of the cases however cited touch this point. The distinction is, that the widow, for whose benefit, as is apparent from the will, the sale is postponed, has signified her consent by joining in the deed, the whole title to the property is sold, out and out, for a full and fair, price, and the fee, in the entirety, consequently vests in the pur
Judgment affirmed.
Mr. Justice Coulter dissented, holding the case to be within the general rule, that there was no power to sell before the death of the widow, and there was no .provision made before that time for distribution of the proceeds,