Burford v. Burford , 29 Pa. 221 ( 1857 )


Menu:
  • The opinion of the court was delivered by

    Woodward, J.

    The plaintiff claimed title in this ejectment as heir at law of his deceased father, Reuben Burford, Sr. To defeat his claim, the defendants, also sons and heirs of the decedent, set up his last will and testament. The plaintiff objected to its being received in evidence, on the ground that it was subscribed with a cross, and not duly attested by the subscribing witnesses. The objection was properly overruled. The will appears to he signed with the name of the testator, and a cross, the subscribing witnesses swearing they were present, and saw *224and heard him sign, seal, publish, pronounce, and declare the instrument to be his last will and testament. In the absence of evidence to the contrary, we would be at liberty to presume that the testator both wrote his name and made his cross, a mode of signature which is not without distinguished precedents. But if it be regarded as a signing with a cross merely, it is sufficient under our Act of 1848, and the attestation is in due form, and adequate to establish the instrument as his will.

    The will in evidence, did it show title out of the plaintiff to the premises in question? We have not been favoured with a copy of the whole will; but from such extracts as are furnished, we learn that the testator divided his farm into three parts, designating them by metes and bounds, and calling them in his will “ divisions” first, second, and third. Then he says, I leave and bequeath to my son, David Burford, third of said tract, the west end whereon he the said David resides. Division second of said tract being previously given to my son George Burford, by a special agreement in writing.

    What disposition he made of division first, and of the residue of his estate, among his eight children, we are not informed. The plaintiff claims that he died intestate as to division second; and this ejectment is for an undivided interest of that part of the testator’s farm. The court considered the words quoted above as a good devise of division second to George; but we feel constrained to differ from the learned judge on that point.

    We think we should do violence both to the testator’s language and intention by construing what he says of No. 2 a devise. It is not in the form of a devise — not a word of testamentary character being employed. That he knew well how to express a devise, is proved by the preceding clause, wherein he gives David No. 8; but he used no language of similar import in respect to George and No. 2. On the contrary, he assigns expressly his reason for not making a devise of No. 2: that it had been previously given to George by a special agreement in writing. Now, if that was true, and it is not for the defendants who offered the will in evidence to question it, — if this land had been given to George in writing, previously to making the will, the testator had no power over it whatever, and the most apt words of devise would not have affected it. How then can these words, which are not words of devise, be considered so potential as to pass land which the testator did not own, either when he made his will, or at his death?

    But if we should adopt the conclusion of the court below, I fear we should trespass not more against the language of the testator than against his intention. He had other children beside these sons. He had given No. 2 to George by a special agreement. The agreement was not in evidence, and we know not *225what it was; but it is easy to conceive that No. 2 may have been the best part of the estate, and charged with legacies or duties to other members of the testator’s family. At any rate George held it, and his father meant he should hold it under that special agreement — a purpose which we would balk by permitting him to hold it under the will. The testator puts the estate upon the special agreement — the court below upon the will. The testator not only makes no devise of the land, but gives his reason for making none — the court says that is a devise.

    Wills are not to be constructed for dead men in this way. When they have done what they could to exclude the idea of a devise, we are rather to help them, than to force a devise on them. Wills would be wills no more: the right of volition would be gone, if, when a man explains why he does not devise a particular part of his estate, we call that a devise. The attempt to make a will for a part of testator’s estate, which he had omitted to mention, was frustrated in Duffield v. Morris, 8 W. & S. 348; but here he has omitted nothing; but has used language to exclude the animum disponendi.

    Setting aside the opinion of the court on this point, the question still recurs, however, did not the will show title out of the plaintiff? It was a solemn admission by the testator in writing that the title was in George and not in himself. The plaintiff, as claiming under the testator, is affected by that admission; and as there was nothing to explain, qualify, or rebut it, it was conclusive against the plaintiff, and should have been the ground of the ruling.

    If there is money to be paid, or conditions to be performed under the special agreement, whereby George holds the land, the executor, and not this plaintiff, would be the party to enforce the obligation by action. If the plaintiff have any rights under that special agreement, it is a sufficient answer to his action that they were not shown. The defendant is in possession under a written gift admitted by the plaintiff’s ancestor. Before the plaintiff can oust him he must show a superior right. Having no legal title to stand on, he must show what equities are due to him before he can call on the defendant to perform them. The case was bare of such proofs, and, therefore, though placed on wrong ground, was properly ruled against the plaintiff.

    A question very analogous to this arose under George Colden’s will made in 1775 (see Denn v. Cornell, 3 Johns. Cases 174), in which he recited, “ whereas I have conveyed to my son Cadwallader my lands at Caldenham, and to my son David my lands in the township of Flushing, I give and devise all my remaining lands and real estate whatsoever to my sons Cadwallader and David and my daughter,” &c.

    In an action of ejectment by the heir at law against the tenant *226of David no other title was shown, but Oh. Kent held the plaintiff estopped by the recitation in his father’s will, and that an estate in fee simple and not for life was to be presumed in David for the Flushing land. Radclieee, J., concurred in the judgment, but not on the ground of estoppel.

    Neither of the judges, nor any of the counsel, thought of treating it as a devise, but the fact recited and admitted in the will operated to defeat the plaintiff, and such is the operation we giye to the will in this case.

    The judgment is affirmed.

Document Info

Citation Numbers: 29 Pa. 221

Judges: Woodward

Filed Date: 7/1/1857

Precedential Status: Precedential

Modified Date: 2/17/2022