51 Pa. 126 | Pa. | 1867
The opinion of the court was delivered, by
The great question in the case, and the only one we shall discuss, is, whether the indenture of 22d November 1849, by John Scott to his son John W. Scott, conveying the farm in dispute, was a deed or a will. Not Avhether the parties called it a deed, nor Avhether it contained the customary words of a deed ; but Avhether, according to the intentions expressed upon the face of the instrument, it can in law have the effect and operation of a deed. This is our question, and it is important to place before our minds, in a very distinct light, the instrument to he interpreted.
John Scott, an old man living on his farm, made, what is called,
After the father and son commenced their joint possession under this deed they quarrelled, and the father turned the son out by an action of ejectment, and kept the sole possession in himself till he died, his wife Patience having died before him.
Before his death, to wit, on the 26th February 1861, he made a formal will in which'he revoked all former wills, “ and particularly a certain will and testament (in form as a deed) recorded in the recorder’s office of said county of Erie, in deed-book U., p. 716, witnessed by Miron Hutchinson and George H. Cutler, and I hereby give and assign as the reason 'of revoking and making void said will, that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will.” He then goes on to devise the land in question to his daughters, Nancy Holliday, Anna Sanford, Parney P. Turner and his son Abner Scott, the plaintiffs in this action.
These devisees succeeded to the possession, but lost it by .an action of ejectment brought against them by John W. Scott, and this is a second ejectment brought by them to regain the possession. If the deed of 22d November 1849 vested the title in John W-. Scott, the subsequent will was inoperative of course, so far as concerned this land; but if the deed vested no present interest, and was intended to operate as a testament, it was very expressly revoked and repealed by the subsequent will, and plaintiff's as devisees under this will have the title.
The testator called and treated the deed as a will, but not until after he had quarrelled with his son and turned him out of possession. When he made the instrument he called it an indenture, and permitted his son to record it as a deed. His treatment of it as a will therefore proves nothing. But what is the effect of the reservation clause above quoted ? Undoubtedly, a life estate was reserved to the grantor with the entire use and possession of the premises, and of course the instrument could not take effect as a
Swinburne defines a testament to be a “just sentence of our will touching that we would have done after our death. And because some there be who do censure this excellent definition to he defective, though unworthily,” he makes a full exposition of the meaning of every word in the definition. The only distinction he makes between a testament and a will is the distinction between justa sententia, and legitima dispositio. But the essence of both is that it is a disposition to take effect after death, and this is adopted by Judge Redfield, the latest commentator, in his work on the Law of Wills, p. 5.
In the case of Habergham v. Vincent, 2 Ves. Jr. 204, the question was, whether two instruments, one in form a will and the other in form a deed, did not together constitute a will, and the case was greatly considered. It was first argued before Lord Thurlow, who took a long time to consider of it and then directed a case to he stated for the opinion of the Court of King’s Bench.
I refer also to cases cited in note 9 of 1 Williams on Executors, p. 61; and Rowan’s Appeal, 1 Casey 293. But it is supposed the covenant of general warranty in the deed estops the plaintiffs. Undoubtedly the covenant of warranty protects the consideration, and as that was in the form of services to be rendered, John W. Scott will be entitled to his action for damages, if he rendered these services. This question has not been investigated in the present action; but if the old man turned the son out of possession of the premises and took exclusive possession to himself, and died 'in such exclusive possession, it is not very likely that a breach of covenant will be enforced against his personal representatives, which was not thought worth asserting against the old man himself.
However this may be, we see nothing in the covenant of warranty to change our construction of the operative words of the
The revocable words of the first instrument having been revoked by the subsequent will, the estate must go to the devisees; and John W. Scott, if entitled to any redress, must seek it by a personal action against the legal representatives of the decedent.
The judgm§nt is reversed, and a venire facias de novo is awarded.