108 Me. 326 | Me. | 1911
Bill in equity praying for the specific performance of the agreement of William C. Allison to purchase and take a conveyance of certain real estate situated in Bar Harbor, in this State. The case is reported to the Law Court on bill, answer and proofs for its determination and final judgment. The present defendant is the executrix of the will of William C. Allison.
Omitting unimportant allegations, the bill shows and it is admitted or proved that on November 3, 1905, William C. Allison,
It appears that afterwards, on December 9, 1905, and in accordance with their previous agreement of October 24, 1905, referred to in the trust deed, Mr. and Mrs. Allison conveyed the Bar Harbor property to the plaintiff Trust Company in trust for the purposes and uses set forth in the deed of trust, for the benefit of Mrs. Allison for life, with remainder over, as already stated.
It appears that Mrs. Allison was divorced from her husband in 1907. It also appears that afterwards, in the same year, by virtue of proceedings instituted in the Court of Common Pleas for the county of Philadelphia, in which county Mrs. Allison resided, she was "duly declared” by that court to be an habitual drunkard, and the court appointed George F. Pettinos a committee of her person and estate. Mr. Pettinos joins in this bill'as a party plaintiff.
Afterwards, on May 27, 1909, the plaintiff Trust Company, as trustee, and Mr. Pettinos, as committee of the person and estate of Mrs. Allison, entered into a written agreement with the defendant’s testator, for the sale and conveyance to him by the Trust Company, with the consent of the committee, of the Bar Harbor
Subsequently, on petition of Mr. Pettinos, the committee, the Court of Common Pleas of Philadelphia, which had appointed him, made an order approving the sale, and authorizing Mr. Pettinos, as committee, "to formally consent thereto on behalf of the said Lenore M. Allison, and to join therein.” Mrs. Allison joined in the prayer of the petition and consented, so far as she had legal capacity to do so, to the making of the order. Under this order, Mr. Pettinos, as committee, and for and in behalf of Mrs. Allison, formally consented to the sale and conveyance, as a compliance with the provisions relating to the consent of Mrs. Allison, contained in the agreement of October 24, 1905, and in the trust deed.
A deed executed by the Trust Company and consented to by Mr. Pettinos, as committee, was seasonably tendered to the defendant’s testator, who refused to accept it and pay according to the terms of the agreement. And this bill is brought to compel specific performance of his agreement to purchase.
The defense relied upon may be stated in these words:
1. That as appears by the bill and exhibits, the title tendered by the plaintiffs to the defendant was not good and marketable, as required by the contract set forth.
2. That the Philadelphia Trust, Safe Deposit and Insurance Company, trustee, was authorized to make sale of the property described in the bill only with the consent of Lenore M. Allison, and that it is not shown that Lenore M. Allison has consented to the sale of the described premises.
3. That the personal consent of Lenore M. Allison is necessary, and that no other person can be authorized by any court to exercise this consent for her.
4. That the giving of such consent is a necessary step in the transfer of title to land in Maine, and that if any person can be authorized to consent in behalf of Mrs. Allison, such authority must come from the courts of Maine, which have exclusive jurisdiction over the subject matter.
So too we may dismiss the question whether the committee, irrespective of the decree of the court, had authority to consent for Mrs. Allison. The right to consent was personal to her. She might exercise it or not, according to her fancy or her judgment. No one else could exercise it for her, in the absence of statute authority, except under the decree of a court having jurisdiction to authorize its exercise. Penhallow v. Kimball, 61 N. H. 596; Heavenridge v. Nelson, 56 Ind. 90; Merrill v. Emery, 10 Pickering, 507; Sherman v. Newton, 6 Gray, 307; Kennedy v. Johnston, 65 Pa. St. 451; Griswold v. Butler, 3 Conn. 227; Pinkerton v. Sargent, 102 Mass. 568. We know of no case where the facts are like those in the case at bar. But the cases we have cited, all involving the right of personal election, are so closely analogous in principle to this one that they may be regarded as authorities on the question. And, too, this case must be distinguished from the class of cases,
It remains to inquire as to the effect of the decree of the court in Philadelphia. It is not disputed that the Court of Common Pleas of Philadelphia had jurisdiction to appoint a committee, or guardian, of Mrs. Allison. And it is clearly shown by the constitution and statutes of Pennsylvania which are made a part of the record that that court did have such jurisdiction. The extent of the power of that court under the constitution and statutes is stated in Kennedy v. Johnston, 65 Pa. St. 451, as follows: "In this State the Fifth Article of the Constitution, section 5, confers upon the Court of Common Pleas the power of a court of chancery, so far as relates (inter alia) to the persons and estate of those who are non compos mentis. The Act of 13th June, 1836, relating to lunatics and habitual drunkards, was passed to carry out the provision of the constitution.” And again in McGinnis v. Com., 74 Pa. St. 245; "Under our statutes, an habitual drunkard is classed with a lunatic, and all such are special subjects in relation to whom the Court of Common Pleas are expressly invested with the jurisdiction and powders of a court of chancery. In effect the lunatic is the ward of the court, and his estate is in custodia legis.” Thus it is seen that the Court of Common Pleas of Philadelphia not only has jurisdiction over the persons and estates of lunatics and habitual drunkards such as is commonly exercised by probate courts in this State, but also in the exercise of this jurisdiction it possesses broad chancery powers. It is a court of equity, as to matters within its jurisdiction. Such is the effect of the constitution and statutes of Pennsylvania as interpreted by the highest court in that State.
The underlying reason for the existence of such a power is, we think, because the good of the ward requires it. It seems to us to be a proper chancery power. It may be indispensable for the protection or conservation of the ward’s interests. And it must be assumed that it will not be exercised except it be for the advantage of the ward.
No case precisely in point has been cited by counsel, nor have we found any. But there are cases which in principle are closely analogous. The right to elect between a testamentary provision and dower is personal to the widow. If she dies, it cannot be exercised by her heirs. Sherman v. Newton, 6 Gray, 307. If she is insane, her guardian, as such, cannot exercise it. Pinkerton v. Sargent, 102 Mass. 568. Nevertheless, the almost unbroken current of authority is that where the person entitled or. bound to elect is a lunatic, the court having jurisdiction of the matter will make the election in her behalf. 1 Pomeroy Eq. Juris, sect. 510; State v. Ueland, 30 Minn. 277; Washburn v. Van Steenwyk, 32 Minn.
We conclude that the Court of Common Pleas of Philadelphia had the power to authorize Mrs. Allison’s committee to consent to the conveyance in her behalf.
The defendant contends next that the decree of the Philadelphia court could not have any effect, no matter what authority or jurisdiction may have been conferred upon that court by statute in Pennsylvania, because the land to be affected lay not in Pennsylvania, but in Maine, and because questions involving titles to land in a State are exclusively cognizable by the courts of that State.
It is true, as claimed, that the laws of the State in which land is situated control exclusively its descent, devise, alienation and transfer, and the effect and construction of instruments intended to convey it, and that the disposition of immovable property, in whatever manner, is exclusively subject to the government within whose jurisdiction the property is situated. United States v. Fox, 94 U. S. 315; Hutchinson v. Caldwell, 152 U. S. 65. It is true, also, that while a court having jurisdiction over the owner of land in another State may compel him to transfer, by proceedings in personam, it cannot empower its master, or committee, guardian, administrator or other officer to transfer the land. And the deed of the officer of the court of land outside the jurisdiction of the court is ineffectual. Watts v. Waddle, 6 Pet. 389; Walkins v. Holman, 16 Pet, 25; Hotchkiss v. Middlekauf, 96 Va. 649; Davis v. Headly, 22 N. J. Eq. 115.
But this is a different case. The Philadelphia court is not undertaking to transfer the title to land in this State, nor to make any decree which affects the title, or the mode of its conveyance. The Trust Company has the title in fee. It wishes to convey it, but its power to do so is limited, not by the laws of the State, but by the terms of the trust deed. The court creates neither the power nor the limitation. The giving consent does not transfer the title.
The court are of opinion, accordingly, that the deed tendered by the plaintiffs to William C. Allison, as set forth in the bill, conformed to the agreement of sale of May 27, 1909, which we have referred to, and conveyed a good and marketable title to the real estate described in the agreement, subject, of course, to incumbrances mentioned therein, and that specific performance should be decreed as prayed for.
Bill sustained with costs. Decree for specific performance to be entered by a single Justice.