Sill v. Blaney

159 Pa. 264 | Pa. | 1893

Opinion by

Mr. Justice Thompson,

This bill was filed for the partition of certain real estate held by'the estate of Jesse Sill, deceased, and J. C. Smith, as tenants in common, and was filed by the two surviving sisters of Jesse Sill, deceased, and the trustee appointed under his will. The testator by his will directs as follows, viz.: “ That the land in question shall not be sold under any circumstances unless it should become necessary to sell the same to pay debts without the consent of my brother and sisters, and, if it should become necessary to sell the same, the proceeds of the same shall be applied to the support and maintenance of the family so long as they may remain together, and whatever is left after the separation shall be divided share and share alike between my brother and sisters then living,” and also, “that my brother, Thomas M. Sill, shall collect the rents of my share of the real estate and apply the proceeds to the support and maintenance of the family.” At the time of the death of the testator the family referred to consisted of the mother and three sisters. The mother and one of the sisters have since died, leaving surviving them the appellants, the Misses Sill, as the family, who still live together in the residence provided for them.

The scope of this bill is to effect a partition between the heirs of Jesse Sill, deceased, and J. C. Smith. The right to such partition is denied by the latter upon the ground that the will of Jesse Sill made an equitable conversion of the real estate, and by the other appellees upon the ground that as to the land in question the testator died intestate. The testator directs that this land shall not be sold unless it be necessary to do so in order to paj*- debts, but only with the consent of the brother and sisters, and, in case of sale, that the proceeds shall be applied to the maintenance of the family. As there is thus no absolute direction to sell, there is no equitable conversion of the land: Bleight v. Bank, 10 Pa. 131; Stoner v. Zimmerman, 21 Pa. 394 ; Anewelt’s Appeal, 42 Pa. 414; Neely v. Grantham, 58 Pa. 433. But the question of equitable conversion however concerns all the devisees and not a stranger, and therefore the appellee Smith cannot make this an objection to bar the right to partition : Chew v. Nicklin, 45 Pa. 84.

As to the allegation of intestacy in regard to the land in question made by the other appellees, it may be said that the testator devised by his will his entire estate, and manifestly did not intend that any portion of it should go to nephews or nieces, and therefore as to this land he did not die intestate. But it is said the title here is in dispute, and there is therefore no jurisdiction to decree partition. It is true that a bill for partition cannot be successfully resorted to for the purpose of determining a disputed title. In this case however no attempt of this character is made. The appellee Smith has not made it and the other appellees have not; they at most claim to be the heirs at law with the Misses Sill, and as such to hold as tenants in common with them. As the testator directed the land to be held for the maintenance of the family as long as its members should remain together as a family, an uncertainty as to those who might survive at the time of the happening of such contingency, all parties having been joined in this action, is not an uncertainty such as would defeat partition. The appellants are in possession of this land, and if a doubt as alleged in regard to their title is permitted to operate to defer partition until it is settled by an action at law, the delay would be indefinite and its effect would practically bar partition. Such a doubt, if existing, may however be determined in these proceedings for partition.

In the case of the Old Men’s Home et al. v. Penna. Institution for the Instruction of the Blind, 17 W. N. 171, decided by the court of common pleas No. 2 of Philadelphia Co., Judge Mitchell, delivering the opinion of that court, in regard to the question of determining a doubt as to title said: “ In the case now in hand there are some peculiar difficulties. The mode of determining the title at law is by ejectment. But neither of these parties is in possession more than the other. Upon which, therefore, shall be cast the burden of admitting itself out of possession and recovering upon the strength of its own title in a case which must at all times be open to some doubt.” The doubt was resolved and partition decreed.

With the two sisters as plaintiffs is joined the trustee who under the will was appointed to collect the rents and to apply them to the maintenance and support of the family. The will does not make him a technical trustee, but an authorized agent, only to receive and collect the .rents so long as the family shall remain together, and apply the same to its maintenance. He had no power to sell and no title was vested in him, but, even if it was, it would not operate as a bar to partition. Hayes’s Appeal, 123 Pa. 132. The bill sufficiently avers title in the heirs of Jesse Sill, deceased, in one half of the land for its severance from the half owned by appellee Smith. Such partition can be made and the one half thus held, or the proceeds of the same, in case a sale should be necessary, can be decreed to be held aggregately as in Phelps v. Green, 3 John. Ch. 302.

It is therefore ordered that the decree dismissing the bill be reversed at cost of appellees, and that the bill be restored and partition decreed accordingly.