33 A.2d 64 | Pa. Super. Ct. | 1943
Argued April 16, 1943. On April 28, 1926 John Simun and his son, George Simun, both of the City of Clairton, Allegheny County, executed a written agreement, under seal, which was duly acknowledged by both parties, and was recorded in the Recorder's Office of Allegheny County two days later, in which, inter alia, John Simun did "covenant, promise, grant and agree" to and with George Simun, his heirs and assigns, "to well and sufficiently grant, convey, and assure" unto the said George Simun, his heirs and assigns, certain fully described real estate owned by him; and the said George Simun agreed, among other considerations mentioned, to pay certain stated sums of money to certain other children of John Simun, on his death, or within one year and one day thereafter.
John Simun died June 19, 1939, leaving a will dated December 16, 1930 and admitted to probate July 21, 1939.
The question for decision is whether said agreement was testamentary in character, and was revoked by John Simun's will. The court below held that it was. In our opinion it was not.
The counter-statement of question involved, formulated by the appellee, is as follows: "Is an instrument designated as an agreement, which conveys no present interest to anyone, but which does determine what shall *605 be done after the owner's death, and then only through the administrators or the executors of the owner, testamentary?"
That is not a correct or fair statement of the issue involved.
After reciting that the party of the first part [John Simun] is the owner of two fully described improved pieces of real estate in the City of Clairton, and that the party of the second part [George Simun] has advanced to the party of the first part large sums of money for the improvement of said abovementioned property, as well as for the payment of the mortgages on said property, the agreement continues: "Now, therefore, for and in consideration of the payments of money hereinbefore referred to, as well as for the further considerations hereinafter mentioned, said party of the first part, for himself, his heirs, executors and administrators doth covenant, promise, grant and agree to and with the said party of the second part, his heirs and assigns, to well and sufficiently grant, convey and assure unto the said party of the second part, his heirs and assigns, the said above described property, and in case a deed for the conveyance of saidproperty be not made prior to the death of the party of the firstpart, (Italics supplied) said party of the first part hereby authorizes, empowers and directs a good and sufficient deed for said property to be executed and delivered to the said party of the second part, by his executors or administrators, upon compliance by said party of the second part with all the considerations, conditions and provisions of the agreement. As a further consideration for this agreement, said second party agrees to pay and discharge such portions of the balance of the mortgages now existing on said property as said first party shall not be able to pay and discharge for himself and also promises and agrees to permit the first party to collect all rents and profits arising from said property during *606 his life time. Said first party, however, to pay all taxes, upkeep and other expenses incident to said property so long as he collects the rentals and profits therefrom. Said second party further agrees upon the death of the said party of the first part hereto, or within one year and one day thereafter, to pay the following sums to the children and heirs of said party of the first part, namely: To Rudolph Simun, $1,000, to William Simun, $1,000, to Andrew Simun, $700, to Annie Cerny, (formerly Annie Simun) and John Simun, the sum of $5 each. Upon compliance with all covenants, conditions and provisions of this agreement, the said George Simun, shall upon the death of the said party of the first part, be entitled to receive a good and sufficient deed in fee simple for said above described property without the payment of any further considerations than those mentioned and referred to herein."
It will be noted: (1) That John Simun then and there covenanted, promised, granted and agreed to well and sufficiently grant, convey and assure the said described real estate to George Simun, his heirs and assigns. This was a present and immediate grant of an equitable interest in the lands, subject to the covenants, etc., by him to be performed.
(2) That, in case a deed of conveyance for the property was notmade by John Simun prior to his death, he authorized, empowered and directed his executors or administrators to execute and deliver a good and sufficient deed for the same to George Simun, upon his compliance with the considerations, conditions and provisions of the agreement. The agreement contemplates a conveyance by John Simun in his lifetime, in accordance with its terms, but orders it to be done by his legal representatives, pursuant to the terms of the agreement, if the conveyance had not been made by him prior to his death.
(3) The agreement contains no reservation of estate, *607 rents or profits in John Simun. On the contrary it contains a promise and agreement by George Simun that he will permit John Simun to collect all rents and profits arising from said property during his lifetime — he, the said John, however, to pay all taxes, upkeep and other expenses incident to said property so long as he collects the rentals and profits therefrom. If no present interest was intended to pass to George, why should he promise and agree to permit John to collect the rents and profits during his lifetime, in return for which John agreed to pay all taxes and upkeep expenses as long as he collected the rents?
(4) There was a valuable consideration for the agreement.
(a) John admitted that George had previously advanced large sums of money to John for the improvement of the real estate and for partial payments on the mortgages.
(b) As a further consideration, George agreed to pay and discharge such portions of the mortgages as John should not pay and discharge.
(c) George further agreed that he would pay to certain named brothers and sisters $2710 on the death of John or within a year and a day thereafter.
(5) It was agreed that on compliance by George with all the foregoing covenants, conditions and provisions, (if John, in his lifetime, had not himself conveyed the said properties to George — see clause 2 above) he, (George), should upon John's death be entitled to receive a good and sufficient deed in fee simple for said properties without the payment of any further considerations than those mentioned.
This analysis of the agreement shows that there was nothing testamentary about it. "A will must be ambulatory and capable of revocation at any time before the decedent's death. `The important and usual incident of such testamentary document is that it vests *608
no present interest but is intended to become operative only after the death of the maker, and until that time it continues tobe ambulatory and may be revoked by testator': Wolfe's Estate,
Unlike the case of Knoll, Executrix v. Hart, Executrix,
This fact was recognized by John Simun himself. For, in his will, supra, in which he gave, devised and bequeathed to George Simun all his property, real and personal of every kind and description, he used the following rather unusual phrase qualifying "property, real and personal", to-wit, "which I own orhave a right to dispose of at the time of my decease". He thus apparently recognized that as to the lands embraced in the agreement, he could dispose of only the legal title, subject to the covenants and conditions therein created. *609 The will was necessary to pass to George his personal property and any real estate acquired between April 28, 1926 and the time of his death.
All of the cases cited and relied on by the appellee and cited by the court below, without exception, were unilateral instruments, such as a will, or an instrument in the nature of a deed poll, signed only by the grantor, to take effect at or after his death, without any consideration payable by the grantee.
The facts of the present case are in many respects very like those in Book v. Book,
Book v. Book, supra, was followed and cited with approval by this court in Anspach v. Lightner,
Logan v. Glass,
The assignment of error is sustained. The decree of the court below sustaining preliminary objections of the appellee to appellant's petition for specific performance, on the ground that the agreement above referred to was testamentary in character and was revoked by the will of John Simun, is reversed and the record is *613 remitted to the court below for further proceedings in accordance herewith. Costs to be paid by appellee.