32 Pa. Super. 596 | Pa. Super. Ct. | 1907
Opinion by
Charles W. Metzger executed his last will on April 14,
The clauses of the will which are material to the determination of the question here presented are as follows: “ After the death of my wife .... I give, devise, and bequeath my home, being my dwelling-house and lot of land attached thereto, No. 133 South Queen street, Lancaster, Pa., to my sister Mary E. Metzger, together with all the contents thereof, during her natural life, as a home for herself and my niece Clara Rogers.” “ The residue and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to my brother Gotlieb F. Metzger, my sister, Mary E. Metzger, my sister Caroline Rogers,- my sister Louisa A. Smith, and my niece Clara Rogers, in equal shares and parts.” The foregoing clauses and the clause in the codicil viz.: “ I give, devise and bequeath to my sister, Mary E. Metzger, and my niece Clara Rogers, and their heirs in fee the dwelling-house and lot of land, No. 135 South Queen Street, and now occupied by my nephew,. John Metzger, and the land attached thereto: ” are the only parts of the will which touch the question here involved. That the testator died intestate as to no part of his estate is manifest. The residuary clause, above quoted, carried all the property that was not specifically devised. There was no uncertainty or ambiguity apparent on the face of the instrument which cpuld justify the introduction of parol testimony to explain it. If
There is no doubt as to the persons who were to take under this will, the identity of the devisees is certain, no other person has appeared who would come within the description of any one of them contained in the will. The condition of the testator’s property and the uses to which it was devoted, at and for a long time prior to the execution of his will and down to the day of his death, was equally free from doubt. The testator lived with his family in the house which in his will he describes as “ my home, being my dwelling-house and lot of land attached thereto, No. 133 South Queen Street;” he had for years so used that house and lot of land attached thereto as a place of residence. The lot which was and had been used as appurtenant to this house as a place of residence was twenty-two feet in front on South Queen street and extended back eastwardly to a fence which separated it from .the bakery property. The fence had been placed there by the testator at the time he erected the dwelling-house, No. 133 South Queen street, on the front of the lot, at least ten years prior to the execution of his will and he maintained that fence in the same position down to the day when his will took effect. The line between the property which the testator thus set apart and used for the purposes of his residence and that, in the rear, which he used for the purposes of his business as a baker, had thus been by the testator himself clearly defined. The land directly east of the lot which the testator had thus set apart for use as a home was used as a yard in connection with the business of the bakery, for the purpose of driving in teams to take away the product of the bakery. It afforded the only means of access to the bakery as constructed, for the building had no door opening on Christian street, the only outlet being through the yard. There may have been a gate in the fence ■ between the two lots, but if there was it did not change the character of the uses to which- the property on either side of the fence was devoted. The plaintiff had for many years been the proprietor of and operated the bakery, which was a manu
The condition of the property of the testator rendered equally certain the application of the devise of the “ dwelling-house and lot of land, No. 135 South Queen street and now occupied by my nephew John Metzger, and the land attached thereto.” John Metzger, the nephew, had for ten years prior to the execution of the will occupied the dwelling-house, No. 185 South Queen street, as a tenant under the testator, and paid a rental of $15.00 per month, and this tenancy continued down to and after the death of the testator. The house fronted on South Queen street and the land thereto appurtenant, as used by John Metzger during the entire period of his occupancy, had a frontage of twenty-five feet on South Queen street and extended back to the bakery property, from which it was separated by the side of a frame shed which stood on the bakery property, and a fence extended from the corner of the shed across the other part of the rear of the lot, to the line of the lot, upon the front of which stood the building No. 133 South Queen street. The line of the lot thus set apart as appurtenant
The application of the will of the testator to his property as it existed at the time of the execution of his will and the time when that will went into effect disclosed no latent ambiguity,, which warranted the introduction of parol testimony to give effect to the will. The description of each property, as contained in the will, was clear and accurate; as to each devise there existed a subject which satisfied the terms of the will, and to which they were perfectly applicable; in such a case there is no latent ambiguity: Wusthoff v. Dracourt, 3 Watts, 240; Best v. Hammond, 55 Pa. 409; Root’s Estate, 187 Pa. 118; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Myers v. Myers, 16 Pa. Superior Ct. 511. The testimony to the effect that John Metzger and his family, occupying the house No. 135 South Queen street, had been accustomed to pass through the gate hi the fence and go to the bakery, or across the lot appurtenant to the bakery, to the eastward, across the lot in the rear of No. 133 South Queen street, and through the gate onto Christian street, was wholly insufficient to establish in John Metzger possession of any part of the bakery property. The ownership and possession of the entire bakery property was in other parties. The utmost right that could be acquired by a long continued use of the yard as a passageway to Christian street, would be an easement for. a right of way appurtenant to the lot fronting on South Queen street. But the evidence in the present case was wholly insufficient even for such a purpose. The testator owned the entire property and the mere fact that he permitted his tenants to walk through the yard of the bakery did not change the character of the uses to which he had for his own purposes devoted it.
The devise of “ my dwelling-house and lot of land attached thereto, No. 133 South Queen street,” carried with it only the land which the testator himself had used as an appurtenance of his dwelling, and it did not include the bakery property, or any part of it which he had for many years himself used for other purposes, and which at the date of the execution of his will was in the possession of other parties, as tenants of the
The bakery property passed, under the will of Challes W. Metzger, under the devise of the residue of his estate, and to the parties who take under that clause of his will these rents should have been awarded.
The decree of the court below is reversed, and it is ordered that the costs of this appeal be paid out of tbe amount received as rents and included in the account, and the record is remitted to the court below with direction to make distribution in accordance with the foregoing opinion.