229 Pa. 349 | Pa. | 1911
Opinion by
The common source of title to the land which is the subject of this ejectment was in John Galloway, who died in 1883, seized of a farm in Mount Pleasant township, Westmoreland county, containing about 306 acres. It was divided by a public road running through it from north to south, and the present controversy grows out of the following testamentary disposition of it made by Galloway in his will, executed May 23, 1879: “I will and bequeath unto my nephew, James Hunter, all that portion of my farm, lying West of the road running through my farm from South to North except that portion which lies along the Brush Run all south of the old coal bank in the fiat. I will and bequeath to my nephew, William Hunter, all that portion of my farm, lying East of the road before mentioned, together with that portion lying South of the old coal bank before mentioned.” James Hunter is dead, and by his will, admitted to probate in June, 1902, his interest in the farm devised to him by his uncle passed to his widow, Mary A. Hunter, the plain
The language of the testator in devising his farm to his two nephews is entirely free from ambiguity, and his intention as to how it was to be divided between them cannot be misunderstood. James was to take all west of the public road except that portion lying along Brush Run, south of an old coal bank in the flat. He was to take all north of that coal bank and west of the road. William, in addition to getting all east of the road, was to have all west of it, south of the old coal bank. The portion west of the road excepted from the devise to James and given to William was said by the testator to lie along Brush Run and to be south of the old coal bank in the flat or level land. If there was a coal bank some distance further north on the side of a hill, the intervening space consisting of more than seven acres, it does not answer to “the" old coal bank in the flat” which the testator had in mind when he executed his will. The case of the plaintiff depended upon her ability to show that, at the time the will of her husband’s uncle was executed, there was an old coal bank in the flat which the testator designated as
Parol testimony was admissible in this case only for the purpose of showing the existence in the flat of the monument of title fixed by the testator himself. It was not competent to show his alleged declarations fixing a different point as the dividing line, for such testimony would have raised a doubt as to his intention, which does not appear upon the face of the will. His intention as there expressed could not be clearer. It matters not that there might have been other coal banks on other portions of the farm — one, perhaps, on the hill above the flat— for the testator had himself declared that the bank in the “flat” should be the dividing line between the lands, and if the plaintiff showed that a coal bank was there, her case was made out. There was no other question of fact for the jury’s determination.
If the excluded offers which are the subjects of the first, second, third, fourth and fifth assignments of error had been allowed, the defendant might have established a will different from Galloway’s written one. This, of course, could not have been permitted. In a prior ejectment between these same parties, involving the same land, in which, however, the present defendant was the plaintiff, the trial judge permitted him to prove declarations of the testator as to how he had divided the farm between his nephews, and, in holding that this was error, the Superior Court, in reversing the judgment for the plaintiff, properly said what we now adopt in dismissing the first five assignments: “When the subject-matter of the devise contained in the will of John Galloway came