247 Pa. 196 | Pa. | 1915
Opinion by
This was a proceeding under the 59th Section of the Act of February 24, 1834, P. L. 73, by certain legatees named in the will of Augustus Weller, deceased, to force the payment of a charge upon land devised by the testator to his son, Charles C. Weller. The Orphans’ Court granted the relief prayed for, and the devisee of the land has appealed.
Augustus Weller died August 6, 1908, leaving a will dated in January, 1907, by which he devised to his son, Charles, a farm of about fifty-two acr.es, on condition that he pay to the testator’s executor the sum of two thousand dollars “within one year from my decease if I should survive my wife or within one year of the decease of my wife if she should survive me”; and the testator expressly stated, “which amount I charge upon the land so devised.” After giving another farm to his son, William, and a piece of land to his son, Frank, each subject to a charge, and making a bequest to his daughter, Jane, the testator gave $800 to his daughter, Catherine Frew, $800 to his daughter, Eleanor Stun
The petition was presented by Edith Brothers, executrix of the estate of Catherine Frew (who had predeceased her father), and Eleanor Stunkard, two of the legatees; and it was joined in by the executor of the estate of Augustus Weller, deceased. The record shows that Flora Thompson was subsequently granted leave “to become a joint petitioner.” The complainants averred, inter alia, that more than one year had elapsed since the death of the testator and his widow; that but a comparatively small sum had been paid on the legacies; and that demand had been made upon the executor for the payment of the balance, but he hád replied that he had not assets sufficient for the purpose, because Charles C. Weller had failed and refused to pay the $2,000 charged upon the land devised to him. Charles C. Weller, the respondent and appellant, filed an answer wherein he admitted most of the material averments relied upon by the petitioners, but insisted that he was the owner in fee simple of the land which Augustus Weller had undertaken to devise to him; and for that reason he contended his father had not died seized or possessed thereof. It is difficult to understand from this answer whether Mr. Weller claimed the farm by purchase, as a gift from his father, upon the theory of continued adverse possession, or through a combination of the last two; but one thing is plain, — he declined to pay the $2,000 upon the ground that he owned the property be
The case came on for hearing, and Charles C. Weller testified, under objection and exception, that he moved on the farm April 5, 1871; that he had lived there continuously ever since, and had never paid any rent or other consideration for the occupancy of the land; that at the time he took possession there was no understanding about the ownership, but he had told his father that he wanted the property and the latter had replied “all right”; that after he had moved on the land he had no particular talk with his father about the ownership,
Charles C. Weller was disqualified as a witness under Paragraph E, Sec. 5, of the Evidence Act of May 23, 1887, P. L. 158, for the “thing in action” was an alleged part of his father’s estate, which had passed by “act of law” to the petitioning legatees, who represented the interest of the decedent in “the subject in controversy,” and the witness was a “surviving party” whose interest was “adverse to the right of the deceased party”; but, for present purposes, waiving that point and assuming
Under the authorities, had the investigation in the court below been a common law trial, on the evidence here presented, the judge would have been obliged to give binding instructions against the appellant; this being so, the question arises, — what jurisdiction had the Orphans’ Court in the premises? The Act of February 24, 1834, P. L. 73, Sec. 59, provides, “When a legacy is or shall be hereafter charged upon, or payable out of real estate, it shall be lawful for a legatee to apply, by bill or petition, to the Orphans’ Court......whereupon, such court, having caused due notice to be given to ...... (the) executor, and to the devisee......of the real estate charged with such legacy......may proceed according to equity, to make such decree or order touching the payment of the legacy, out of such real estate, as may be requisite and just.” A line of cases beginning with Craven v. Bleakney, 9 Watts 19, including Strickler v. Sheaffer, 5 Pa. 240, and Hartzell’s Est., 178 Pa. 286, all hold that the remedy provided by the Act of 1834 is an exclusive one. In Pierce v. Livingstone, 80 Pa. 99, 102, speaking by Mr. Justice Sharswood, we state that the design of this act is “to vest in the Orphans’ Court the
While it is true that the executor of the estate of Augustus Weller joined in the petition to the court below, and that in several cases we have decided that such a petition must be by the legatees and not by the executor of the testator (see Field’s App., 36 Pa. 11; Conrad’s App., 33 Pa. 47; Luckenbach’s App., 170 Pa. 586; Hartzell’s Est., 178 Pa. 286; Baker’s App., 59 Pa. 313), yet, we have at no time determined or intimated that, where proper parties petition, the mere joinder of an improper party would annul the proceeding; on the contrary, in Hartzell’s Est., supra (p. 290), where the Orphans’ Court refused to entertain the petition because it was by the executor alone, we affirmed the decree with permission to the court below to “reinstate the petition and permit the legatees to come in upon it as parties plaintiff”; also see Baker’s App., 59 Pa. 313, 317, where we state that one legatee alone may petition or others join with him, and that the executors should be called in to defend, and Knecht’s App., 71 Pa. 333, 343, where we ruled that, though the petition may be informal as to the position in which such executors are placed, whether plaintiff or defendant, yet, the informality may be amended. Here, all necessary parties were in court; although the executor was joined as a
The assignment of error is overruled, and the decree is affirmed; the appellant to pay the costs.