37 Pa. Super. 311 | Pa. Super. Ct. | 1908
Opinion by
The plaintiff and the defendant in this action of ejectment both claimed title under the will of John Galloway. The devises in said will which have any bearing on this controversy, being in the following words, viz.: “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 flat. I will and bequeath unto my nephew, William Hunter, all that portion of my farm lying east of the road before mentioned, together with that
The land in dispute lies west of the road mentioned in the will and the question turned at the trial upon the location of the “old coal bank in the flat.” The plaintiff contended that the coal bank referred to was located at a slight depression, or bench in the hillside, several hundred feet north of the line where the land began to rise above the strictly flat or level land near Brush Run, and that there was no coal bank in the flat land near the run. The appellant contends, and produced evidence which she asserts established, that there was, at the time the will was executed and, also, when it went into effect, a coal bank in the flat. There was no ambiguity in the will, the doubt, if any arises, is produced by extrinsic evidence, in applying the will to the subject-matter. The plaintiff" having offered the will in evidence, called as a witness John Crise and stated a purpose “to prove by'this witness the location of the old coal bank mentioned in this will.” The first material question asked of this witness, by the plaintiff, was whether he was familiar with the John Galloway farm, and the answer was in the affirmative. The plaintiff then proceeded to ask the witness question after question, as to how long he had lived on the farm and upon what parts of it he had worked, and then proceeded to interrogate him as to the location of the old coal bank. The witness testified that there was a depression in the ground where they said there was an old coal bank, but that he had never seen down into the coal bank, nor seen it open, that there was slack coal lying around there, .where he presumed they had taken coal out, and that this depression was located 400 or 500 feet north of the present line fence between the plaintiff and the defendant. The witness was asked by the defendant as to the lay of the land from this slack coal, at the depression to which he referred, south to the fence, and replied: “Well, it lays flat there, a little bit rolling from the depression down to the line of the fence.” The defendant proposed
The article of agreement between William A. Hunter and Robert S. Jamison, and the deed of Hunter to William Thaw, did not contain anything which could, by reasonable implication, be held to be an admission of title in James Hunter, or those claiming under him, to the land in dispute, and the second, third and eighth specifications of error are dismissed.
The plaintiff having produced evidence tending to show that the old coal bank was located on the sloping land, rested. The defendant produced evidence which would have warranted a finding that at the time the will was executed and at the time it went into effect there was one, possibly more than one, opening in the flat land from which coal had been and was being mined. The plaintiff in rebuttal, then produced evidence tending to establish that the coal which had been taken from the flat land had been obtained by merely stripping off the small quantity of earth lying over the coal on this level land and then removing small quantities of coal, that this had been done in several places; that these workings were mere temporary expedients for obtaining small amounts of coal, and that none of these workings were of such a character that they could be
The plaintiff offered to prove by the witness Hitchman that the testator had pointed out to the witness the old coal bank and told the witness that that was the old coal bank to which1 he had run • the line of division between the part of the farm which he had given to his nephew James G. Hunter and the part he had given to his nephew William A. Hunter; “for the purpose of showing what John Galloway intended and meant by the division of the farm between the two devisees by the description in the will.” This testimony was admitted by the court below under an exception to the defendant, and is the subject of the sixth specification of error. The witness testified that the testator had told him that “he had divided the farm between his nephews leading right from the little swamp oak up past the old coal bank,” and that the old coal bank was located “across the bottom from the road, across the bottom pretty near at the foot of the hill.” The seventh specification of error raises the same question, and under the exception upon which this specification is based the plaintiff was permitted to
The second and third points submitted on behalf of the defendant, while they recited certain facts, withdrew from the consideration of the jury a question of fact which under the evidence was disputed, namely, was there an old coal bank in the flat, or level land? These points asked for binding instructions in favor of the defendant, as did also the sixth point. The question of fact was for the jury and the points were properly refused. The tenth, eleventh and twelfth specifications of error are dismissed.
The judgment is reversed with a new venire.