3 Whart. 61 | Pa. | 1838
The opinion of the Court was delivered by
This action is brought to recover damages, for the non-performance of an agreement to purchase a certain messuage and lot of ground, &c. The question is, whether the title to the messuage and lot of ground is vested in the plaintiff in fee. The facts of the case are contained in a case stated, in the nature of a special verdict. The doubt arises on the conveyance of William Rawle and Mrs. Clifford, to Margaret Wharton. The plaintiff’s counsel contend, 1st. That the conveyance may
It is unnecessary to rest the question on the first ground, as we are clearly of the opinion the title is good on the second. The testatrix empowers her executor to sell and convey her house and lot in Callowhill street, and also such ground-rents, not already devised, as may remain her property, at the time of her death. The moneys thence arising, together with her other personal property and estate, &c., she gives and bequeaths to her two daughters, Anna Clifford, and Margaret Wharton, and her son William Rawle, equally to be divided among them; but the share allotted to her daughter Anna, is to be held by her brother in trust for her separate use, and not to be liable to her husband’s contracts, or control, in any manner whatever. The testatrix gives her a power to dispose of the same, by any writing in the nature of a will, notwithstanding her state of marriage. And, if she should die, without having made such disposition thereof, then the said, personalty goes to her daughter Rebecca. By the will of Mrs. Shoemaker, therefore, her property is directed to be equally divided between Anna Clifford, Margaret Wharton; and William Rawle, with a power to sell. It is well settled, that when the proceeds of real estate are devised, the persons beneficially interested may elect to take the fund as real estate. The devisee may take it either as land or money. Leigh and Dalzel on Conversion, ch. 8, p. 119, 170, 179, 180; Burr v. Sim, (1 Wharton, 265.) I entertain no doubt that the deed of two of the legatees to the third, may be taken as an election to take the fund as real estate. Nor. can the right of William Rawle to convey, or of Margaret Wharton to receive the conveyance, admit of doubt: and as to the right of Anna Clifford, we consider it as a question more of novelty in this state, than as presenting any real difficulty either in principle or authority. By the will of Mrs. Shoemaker, the one-third of the property is vested in William Rawle, to the separate *use of Anna Clifford, with a power of disposition by will, and in default of appointment, over. Independent of the fact, that at the time the devise took effect, Mrs. Clifford was a married woman, it is clear that such a devise would give her an absolute estate in fee. Jackson v. Robins, (16 Johns. Rep. 537,) is full to this point. Chancellor Kent, after a full review of the authorities, lays it down as an incontrovertible rule, that when an estate is given to a person generally, or indefinitely with a power of disposition, it carries a fee; and the only exception to the rule is, when the testator gives the first taker an estate for life only, by certain and express
Judgment for the plaintiff.
Cited by Counsel, 4 Wharton, 449 ; 8 Watts, 506 ;. 4 Watts & Sergeant, 547; 9 Id. 134; 9 Barr, 379 ; 1 Jones, 363; 3 Harris, 342; 4 Id. 262; 6 Id. 269; 12 Id. 254; 3 Casey, 78 ; 2 P. F. Smith, 157; 4 Id. 247; 7 Id. 242, 510 ; 8 Id. 367.
Cited by the Court below, 7 Casey, 151.
Cited by the Court, 4 Wharton, 129 ; 3 Watts & Sergeant, 231; 4 Id. 197 ; 7 Barr, 290; 6 Harris, 108; 9 Id. 384 ; 2 Casey, 231; 1 Wright, 39 ; 10 Id. 490; 8 P. F. Smith, 442; 10 Id. 495.
Soo 2 P. F. Smith, 223 ; 10 Id. 147.
See 8 Harris, 302; 9 Casey, 87; 14 Wright, 148; 7 P. F. Smith, 355.
See 9 Watts, 137 ; 1 Barr, 111; 4 Id. 93 ; 10 Id. 423.
6 P. F. Smith, 230,