Miller v. Springer , 70 Pa. 269 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Siiarswood, J.

The unqualified affirmance, by the learned judge below, of the defendant’s first and second point was undoubtedly error. The will of Rachel Skiles, on its face, raised no case of election. It did not assume to devise the property in question as her own, although her title to it, if she had any, certainly did pass by general words. It is well settled, and accords with the reason and principle of the thing, that if the language of the will admit of being restricted to property belonging to or disposable by the testator, the inference will be that he did not intend them to apply to that over which he had no disposing power. A general devise of the testator’s real estate has always been held to show an intention to give what strictly belongs to him, and nothing more, even if the testator had no real estate of his own upon which the devise could otherwise operate: 1 Jarman on Wills 393. Nor can evidence dehors the will be admitted to show that the testator considered the land in-question to belong to him, and intended it to pass under the will: Id. 391. Now, according to the will of Sarah Skiles, after devising a certain out-lot specifically, she directs all the balance of her property to be sold by her executors, and the proceeds to be distributed to certain persons named. On the face of the will there was no devise of the premises described in the writ of ejectment, and it was error, therefore, in the learned court to say, as they did in affirming the defendant’s first point, that “Jacob B. Miller being a legatee under the will of Rachel Skiles, and having received a specific legacy of fifteen hundred dollars, and a share of the residue as far as distributed, cannot now impeach it, or set up a title to this land, or in any way defeat the provisions of this will;” and there was like error in the unqualified affirmance of the second point of the defendants, “ that having been appointed by Rachel Skiles one of the executors of her will, and having accepted, qualified and acted as such, he cannot dispute the provisions of said will, nor set up» title to real estate claimed by her.” In like manner the learned judge erred in his charge, in referring to the fact that the property in dispute was claimed by Mrs. Skiles in her lifetime, and that she died in possession. It is evident, according to the authorities, that this was insufficient to put a legatee to his election who was not informed by the will itself that the testatrix had undertaken therein to dispose of his property as her own.

But while the plaintiff has convicted the learned judge below of this error in the abstract, he has failed to convince us that he was injured thereby. For although evidence cannot be given dehors the will to prove that it was the intention of the testator to devise the property in question, alleged to belong to the legatee, that is an entirely different question from showing that the legatee himself had dealt with it as belonging to the testator, and as having passed by the will. In the case before us it was shown, by evidence not merely uncontradicted, but which could not be contradicted, because it was' of record, that the plaintiff Jacob B. Miller, as one of the executors of Rachel Skiles, had treated the premises as part of her estate and intended to pass by her will. Not only as one of the executors did he return this lot to be appraised for the collateral inheritance tax, and claimed credit in his account for the tax so paid, but in answer to a rule taken upon the executors in the Orphans’ Court to show cause why they should not sell this lot under the power in the will, he put on the record, June 5th 1868, an answer under oath, in which he alleges, as a reason for not selling, that an ejectment was pending in the District Court of the United States for the Western District of Pennsylvania, by one John Bruner, against the executors, and that in the exercise of the discretion reposed in them by the testatrix they ought not to sell under the 'power before the title shall be finally settled. He states the title set up in that ejectment to have been derived from Alfred Howel, Esq., the vendee of the sheriff under the Piper mortgage to the American Life and Trust Insurance Co., the very title under which the plaintiff claims to recover in this ejectment — having produced a deed from John Bruner and wife to him, dated July 20th 1867. At the very time, then, that this answer was filed of record, it appears that the legal title was in Miller, and indeed the evidence shows that the original purchase from Howel was made with his money and for his use. Surely if there is any force in the maxim allegans contraria non est audiendus, it ought to be applied to such a case as this: Broom’s Legal Maxims 160. Jacob B. Miller ought not now to be heard to allege that the Piper lot was not intended to pass by the will of Mrs. Skiles as part of her estate, and this being so, he was precluded on every principle of equity, by his acceptance of the benefits devised under that instrument, from setting up any adverse title in himself' to the lot in question. The learned judge would, therefore, have been entirely justified, under the evidence upon this point alone, to have withdrawn the case from the jury and instructed them to find for the defendants.

This conclusion at which we have arrived evidently renders it unnecessary to consider the remaining specifications of error.

Judgment affirmed.