McClintock's Appeal , 71 Pa. 365 ( 1872 )

The opinion of the court was delivered, by

Williams, J.

The Orphans’ Court was clearly right in deciding that the pine and hemlock timber reserved by the decedent in his deed to the administrator was personal property, and in charging him with its value. In agreements for the reservation or sale of growing timber, whether the timber is to be regarded as personal property or an interest in real estate, depends on the nature of the contract and the intent of the parties.

If the agreement does not contemplate the immediate severance of the timber it is a contract for the sale or reservation of an interest in land, and until actual severance the timber in such case passes to the heir, and not to the personal representative. But when the agreement is made with a view to the immediate severance of the timber from the soil, it is regarded as personal property, and passes to the executor and administrator, and not to the heir. The earlier authorities, it is true, do not make any distinction between such contracts. Thus, it is said, if a tenant in fee simple grants away the trees, they are .absolutely passed away from the gfantor and his heirs, and vested in the grantee, and go to the executor or administrator, being in understanding of the law divided as chattels from the freehold, and the grantor hath power incident and implied to the grant to fell them when he will, without any other special license: Stukeley v. Butler, Hob. 173 a. So when a tenant in fee simple sells the land and reserves the trees from sale, the trees are in property divided from the land, although in fact they remain annexed to it, and will pass to the executors or administrators of the vendor: Harlakenden’s Case, 4 Rep. 63 b; Liford’s Case, 11 Id. 50; 4 Bac. Abr. tit. Executors and Administrators, H. 82; 1 Wms. Ex’rs 594.

But the distinction to which we have adverted between contracts made with a view to the immediate severance of the timber, and those which are not, is taken in the later authorities: Crosby v. Wadsworth, 6 East 602; Smith v. Surman, 9 B. & C. 561, 17 E. C. L. R. 253; Addis. Contr. 31; and recognised in our own decisions: Huff v. McCauly, 3 P. F. Smith 206; Pattison’s Appeal, 11 Id. 294. In the case last cited the present Chief Justice said: “We regard a contract for standing timber on a tract of land, to he taken off at discretion- as to time, as an interest in land, and within the Statute of Frauds and Perjuries, the transmission of which must be' by writing.” But in the case in hand it is manifest that the parties intended by their contract to divide the pine and hemlock timber from the freehold, and give to it the quality of a chattel. It was not to be taken off at discretion, as to the time. By the express terms of the deed the vendee of the land had the right to require the removal on giving, and the vendor was bound to take it off on receiving thirty days’ notice. The timber must, therefore, be regarded as a chattel, which passed to the' administrator. In so ruling we do not trench upon the doctrine laid down in Pattison’s Appeal, or qualify it in any respect whatever. That case was unlike this in one of its material elements, and was well decided on its facts, and the guarded language of the Chief Justice shows that he had in view the distinction which the law makes in regard to contracts for the reservation or sale of growing timber. If the reservation had been of a perpetual right to enter on the land and cut all the pine and hemlock timber growing thereon, or of a right-to cut and take it off at discretion as to time, then it would be within the rule laid down in Yeakle v. Jacob, 9 Casey 376, and Pattiso'n!s Appeal, and be regarded as an interest in land, which would pass to the heir and not to the administrator on the vendor’s death. But this element, as we have seen, is wanting, and therefore the Orphans’ Court rightly held under the authorities, that the timber in question was personal property, for the value of which the administrator was accountable. It needs no argument to show that the vendor reserved the whole property in the timber, and not merely a right to its use and advantage during his life. This is too apparent on the face of the deed to admit of doubt or question. We see nothing in the facts of this case to take it out of the rule laid down in Sterrett’s Appeal, 2 Penna. Rep. 419, and it follows that the administrator was properly charged with the costs of the audit.

Decree affirmed, at the cost of the appellant.