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children, but grandchildren, such grandchil. him at the date of the will to a devisee mentiondren, being the great-grandchildren of the tes- ed in the will, without any restriction, the dev. tator, would be disinherited, as grandchildren

isee acquired under the codicil a fee in the land. do not take under a devise to children. Ga

Appeal from Court of Common Pleas, Alble's Ex'rs' Appeal, 40 Pa, 231. In doubtful

legheny County. cases such a construction should be adopted

Action by John Dougherty against John G. as would distribute the estate as nearly as Wellinger From a judgment for plaintiff possible according to the intestate laws. The

on a case stated, defendant appeals. Afword 'heirs,' we think, therefore, should not firmed. be construed as synonymous with children.' That it was not used in its general sense is

The following is the opinion of the court evident from the fact that the limitation over

below (Frazer, J.): is to testator's grandchildren, who would

"The facts set forth in the case stated are be the collateral heirs of a deceased grand

as follows: Joshua T, Bartholic, by last will child not leaving lineal heirs. It seems, then,

and testament, dated March 19, 1883, dethat the testator intended here to limit the

vised certain real estate to his children and estate given to his children to their lineal

grandchildren. After making these devises heirs or issue, which shows also his intention

he provided, inter alia, as follows: Further, to use the word "children’ in its comprehen

it is my will and I so direct that the real sive and extended sense, meaning issue or

estate by me deyised to my several children heirs of the body. If this construction be

and grandchildren shall not be sold during correct, the gift then is to his children for life,

their natural lives but at the death of any with remainder to the heirs of his body, or

one of them, or at the death of each one their issue, which vested in the children a

of them that their respective portions of real fee tail, enlarged by the act of assembly into

estate, devised and bequeathed to them be a fee simple. Another reason for so constru

sold and the proceeds of sale be equally diing this will is, if the limitation is to grand

vided between each one of their respective children as such, and none of his sons or

children, share and share alike, and if either daughters left children, there would be in. of my said children and grandchildren die testacy, which is to be avoided if possible. leaving no issue, child or children, then and This construction is supported by the follow

in that case his or her share of the devises ing cases: Haldeman v. Haldeman, 40 Pa.

by me made to such one of my children or 29, where the words 'child or children' were

grandchildren be equally divided among my held to be used in the sense of issue of heirs remaining child or children, share and share of the body; Brinton v. Martin, 197 Pa. 615, alike.' Afterwards, at different times, tes47 Atl. 841; Potts v. Kline, 174 Pa. 513, 34

tator executed four codicils to his will, the Atl. 191; Yarnall's Appeal, 70 Pa. 333; Shee

third of which being dated April 27, 1888, in ley v. Neidhammer, 182 Pa. 163, 37 Atl. 939.

which he directs that certain of his real esAlthough the gift to the testator's sons and

tate not mentioned and included in his origdaughters is the proceeds or interest of his inal will be divided by his executors into estate, yet, as his intention seems to have twelve lots, two of which lots (Nos. 9 and 10) been to give the proceeds or interest to them he devises to his son Jonathan W. Bartholic. forever, it is equivalent to a devise of the That, after the death of testator, Jonathan fee. Haldeman v. Haldeman, supra; Saxton

W. Bartholic took possession of lots Nos. 9, V. Mitchell, 78 Pa. 479. As the testator's

and 10, and subsequently conveyed the same sons and daughters took the fee under his in fee simple to plaintiff's predecessors in title. will, and have made an amicable partition That the same, by subsequent transfers, beof the land devised to them, this petition

came vested in the plaintiff, John Dougherty, must be dismissed."

who, by articles of agreement, agreed to sell Argued before MITCHELL, C. J., and

and convey the same to the defendant, John DEAN, FELL, BROWN, MESTREZAT, and G. Wellinger, for the price or sum of $1,600. POTTER, JJ.

That a deed was tendered by plaintiff to the C. W. Reamer and D. M. Miller, for appel

defendant for the property, which defendant lapt. J. L. Ritchey and D. S. McCann, for

refused to accept; alleging as a reason for

his refusal that the devise by Joshua T. Barappellee.

tholic to Jonathan W. Bartholic was for life PER CURIAM. The decree is affirmed on

only, and that plaintiff was unable to convey the opinion of the court below.

a fee-simple title to the defendant. It was further agreed that, if the court should be

of opinion that the devise by the will of (207 Pa. 601)

Joshua T. Bartholic of lots Nos. 9 and 10 to DOUGHERTY v. WELLINGER.

his son Jonathan W. Bartholic was a devise

in fee simple, judgment was to be entered (Supreme Court of Pennsylvania. Jan. 4, 1904.)

in favor of plaintiff and against the defendWILLS-CONSTRUCTION-NATURE OF ESTATE.

ant for the sum of $1,600 and costs; if of the 1. Where testator devised land, and prohibit

opinion that Jonathan W. Bartholic took but ed its sale during the life of the devisee, and a life estate in the property, then judgment thereafter, by codicil, devised land owned by to be entered for the defendant, with costs.

57 A.-3

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"It seems clear to us that Jonathan W. Bartholic acquired a fee-simple title to the property, and that it was the intention of the testator that he should take such title. As we understand the facts set forth in the case stated, the clause above quoted, which occurs only in the original will, of November 21, 1889, applies solely to real estate devised in that will, and does not apply to the devises made in the subsequent codicils. In no other part of the will, nor in any of the codicils, are similar words to be found, nor any words indicating an intention upon the part of the testator that the condition imposed by that clause quoted should apply to devises made in the codicils. On the contrary, a careful reading of the codiciis indicates an intention upon the part of the testator to devise the real estate not included in the original will, and especially that divided into lots, free from the effect of the condition in the original will above quoted. Being of the opinion that Jonathan W. Bartholic took a feesimple estate in lots 9 and 10 under the codicil of April 27, 1888, it is ordered that judg. ment be entered in favor of the plaintiff for the sum of $1,600, with costs of suit."

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

R. A. Kennedy, for appellant. Edward J. I. Gannon and James A. Dougan, for appellee.

"(2) In accordance with this agreement, the plaintiff, with her husband, conveyed to the defendant the farm in Indiana county, and he took possession of it February 1, 1896. After the deed was delivered, the defendant discovered that, instead of being free from all incumbrances, as the agreement required, the land in Indiana county was subject to a mortgage of $1,000 made by the plaintiff to H. F. Doris, together with a judgment in favor of one Bialas for the sum of $200, and certain taxes. The defendant thereupon went to Mrs. Kerlin and told her of these incumbrances, and she told him that she would have Dr. Doris fix it up, which she repeated to him on a second visit. Her husband and Doris then called on Knipp, the defendant, and told him that it had been arranged by Mr. and Mrs. Kerlin and Doris that the deed should be made to Doris, and he would pay the incumbrances and hold the property as security.

“(3) Knipp thereupon, without further communication with Mrs. Kerlin, the plaintiff, on June 23, 1896, made a deed for his house and lot in Wilkinsburg to Doris, who paid the mortgage, the judgment, and the taxes, and Knipp gave his check for the $250, which he was to pay to Mrs. Kerlin according to the contract. This check was made by Knipp to the order of Mrs. Annie Kerlin, and was indorsed, 'Annie Kerlin,' and 'Samuel L. Kerlin. Mrs. Kerlin says she never received or indorsed this check, and Samuel L. Kerlin, her husband, says that he forged her signature, and this we find to be the fact.

“(4) On December 22, 1899, Annie Kerlin, the plaintiff herein, Aled her bill against H. F. Doris and one Rose Bannon, to whom he had conveyed the land in question, in which she claimed that Doris had obtained title to the lot in question, among others, as trustee for her, and prayed a reconveyance to be made from Rose Bannon, the grantee of Doris. This bill was dismissed, as against Rose Bannon, for the reason that she appeared to be a purchaser for value, without notice, and a decree was entered for an account between the plaintiff and H. F. Doris as to the lot in question. Mrs. Kerlin testifies that, before she brought the suit against Doris, she notified Knipp that she was about to bring it, and, if she was not successful in it, she would proceed against him. In this she is corroborated by two young girls-one her daughter, and a visitor. Mr. Knipp denies any such notice was given him, and we find it was not.

"(5) The present bill was filed February 21, 1903, and at no time from the making of the deed to Doris, in 1896, until a few weeks before the filing of the bill, did Mrs. Kerlin make any demand of the defendant, Knipp, in regard to the property in Wilkinsburg, or the $250 which he was to pay her, or say to him in any way that she was dissatisfied with the conveyance to Doris; nor did she demand of him any rent or compensation for

PER CURIAM. The judgment is affirmed on the opinion of the learned judge below.

(207 Pa. 649)

KERLIN V. KNIPP. (Supreme Court of Pennsylvania. Jan. 4,

1904.) SPECIFIC PERFORMANCE_WHEN SUIT MAIN

TAINABLE. 1. Where one having a contract for the purchase of land knows that his vendor has conveyed it to an innocent third party for value, be cannot maintain a bill for specific performance, and ask to have his damages assessed thereunder for breach of contract.

Appeal from Court of Common Pleas, Allegheny County.

Billby Annie L. Kerlin against John C. Knipp. From a decree dismissing the bill, plaintiff appeals. Affirmed.

The following is the opinion of the court below (Shafer, J.):

"(1) On and before December 28, 1895, the plaintiff was the owner of eighty acres of land, niore or less, in Indiana county, and the defendant was the owner of a house and lot in Wilkinsburg, Allegheny county. On that day they, with the husband and wife of each, respectively, entered into a contract of ex. change.

11. See Speciác Performance, vol. 44,. Cent. Dig. 88 2, 416.

the use of the property, although she was bill presented a claim cognizable in equity, well acquainted with the plaintiff, and on one

ne in

if it had been sustained by the facts, and occasion, before the bringing of the suit therefore the jurisdiction of the court attachagainst Doris, she asked him to lend her $19, ed. Here, on the contrary, the plaintiff, as which she said she wished to pay in the suit already said, knew when she filed her bill against Doris to compel him to turn over the that the relief prayed was beyond the power property."

of the court, and her only remedy was at The court dismissed the bill on the grounds law. (1) that there was an adequate remedy at Decree affirmed, with costs. law; (2) that plaintiff was barred by her la ches; and (3) that plaintiff was barred by the act of April 22, 1856.

(207 Pa. 580) Argued before MITCHELL, C. J., and

In re WARNER'S ESTATE. FELL, BROWN, MESTREZAT, and POT. (Supreme Court of Pennsylvania. Jan. 4, TER, JJ.

1904.)

HUSBAND AND WIFE-ANTENUPTIAL SETTLEL. C. Barton, for appellant. William P.

MENT-FRAUD-ADMINISTRATOR Schell, Jr., and R. H. Douglas, for appellee.

-APPOINTMENT. 1. Where a prospective husband nearly 80

years old, and possessed of a competency, by PER CURIAM. The parties agreed in writ- an antenuptial agreement cuts off the woman ing in December, 1895, to exchange lands, he is about to marry without a cent for her and in February, 1896, plaintiff made a deed

support after his death, it raises the presump

tion that he designedly concealed from her the of her land to defendant, who thereupon value of the estate. went into possession. This bill was filed in 2. Where a widow and the sons of the de1903—more than seven years after the con

cedent by a former marriage are bitterly antract which it seeks to enforce specifically,

tagonistic, the register should appoint a disin

terested person as administrator on the failure and in the meantime defendant had conveyed of the parties to agree. the land to one Doris, and he, in turn, to an

Appeal from Orphans' Court, Allegheny innocent purchaser for value. Defendant

County. claims that this was by arrangement with

In the matter of the estate of E. S. Warplaintiff. With this, however, we have noth

ner, deceased. From a decree revoking leting at present to do. It is sufficient that

ters of administration, R. E. Warner and plaintiff was aware of the conveyance, and

Lawrence Warner appeal. Reversed. brought suit against the purchaser, which was unsuccessful. It thus appears clearly

In 1897 Dr. E. S. Warner and Mary Sands, that when plaintiff filed this bill she knew being in contemplation of marriage, executed that she could not have the relief by specific an agreement in writing, by which they reperformance which she sought. Her sole linquished all marital rights in each other's claim that was left was for breach of the

estates. agreement, and her appropriate remedy was The auditing judge (Miller, J.) found other an action at law for damages. In this the

facts as follows: “On August 11, 1897, an whole merits of her controversy with defend

addition to the foregoing agreement was ant could be determined, and adequate com

made and duly executed by both parties, pensation secured. The bill, therefore, was

wherein it is stated that the decedent owned properly dismissed for want of jurisdiction in real estate on Ninth street, Pittsburg, valued equity.

at $15,000, and real estate on Penn avenue, Cases in which a court of equity, having Pittsburg, valued at $25,000, and personal jurisdiction, but finding a decree for specific property consisting only of household goods performance impossible or even inexpedient,

and furniture. On the same day the parties has awarded damages, stand upon a different

were married, the decedent then being sevenfooting. Thus, in Masson's Appeal, 70 Pa. 26, ty-seven years of age, and his wife about fiftycited for appellant, the bill was for an in- five years of age. She had no separate estate junction to stop the use of plaintiff's party in possession or expectancy, save the right to wall by defendant until it should be paid for. a small annuity, which bears no comparison Pending the suit, the parties agreed that de

to the estate of the decedent. He died on Nofendant might use the wall; he giving bond

vember 29, 1902, intestate. He left no provifor the sum that might be awarded to plain

sion whatever for her. The inventory filed tiff. It was held that the amount might be shows personal estate amounting to $32,266.ascertained, and decreed as damages. So, in 49. The real estate on Ninth street, PittsMaguire v. Heraty, 163 Pa. 381, 30 Atl. 151, burg, was still in his possession, and is part 43 Am. St. Rep. 800, also cited, the bill sought of bis estate, and is in a section of the city to have the first purchaser, who had a deed where values have greatly increased. His on an oral contract, declared a trustee for the

widow, at the solicitation of the decedent's second, who had the vendor's contract in two sons by a former marriage, who are his writing. This, however, failed; but, there

sole heirs. within a few days after his death being a decree pro confesso against the ven

went with them to the office of their counsel, dor, the court held that damages might be

| 1. See Husband and Wife, vol. 26, Cent. Dig. $ assessed under that. In both these cases the 165.

who had also been counsel for their father, examined the authorities, and satisfied himand who had prepared and been a witness to self that trouble might arise from "an allega. the foregoing antenuptial agreement. There tion on the part of the widow that she did 'It was represented to her that by virtue of not have full information as to the amount of the execution of the above-recited agreement the estate of the intended husband at the she had no interest whatever in the dece- time of the execution of the paper," he deemdent's estate had no right to administer ed it prudent for the protection of his client thereon; whereupon she renounced her right to have added to it what the parties signed of administration in favor of decedent's sons. on August 11, 1897. Shortly thereafter, she no longer having a If this contract is to be sustained, it will home or means of living from her husband's only be after those claiming under the deestate, upon a disclosure of her situation, and ceased husband have, by proper proof, overa statement of the facts hereto concealed, she come the presumption that there was conprocured counsel and presented her petition, cealment from the wife, amounting to a averring that she had never been advised of fraud upon her, of the value and extent of her rights; that her renunciation had been his estate. This burden was cast upon the obtained through fraud and misrepresenta- | appellants at the hearing in the court below, tion; asking for a revocation of the appoint- but the only proof submitted by them was ment of administration. The answer filed the supplemental writing of August 11th. sets up the antenuptial agreement."

Under the circumstances attending its exeThe court entered the following decree: cution equity ought not, and will not, regard “And now, to wit, June 18, 1903, this matter it as sufficient for the purpose for which it having come on for a hearing, the evidence was offered. There was no proof that at any produced on behalf of the petitioner and of time before August 11th the appellee had full the respondents having been heard, and the knowledge of what estate her husband poscase having been argued by counsel, upon sessed, or that she had acted intelligently consideration thereof it is hereby ordered, ad- in entering into the contract, most improvijudged, and decreed that the letters of ad- dent for her; but on that day, when, with ministration upon the estate of E. S. Warner, the man she was about to marry, they were deceased, heretofore granted by the register on their way to the parson's house, she was of wills of said county of Allegheny to R. E. taken by him into his lawyer's office for the Warner and Lawrence Warner, are revoked; admitted purpose of attempting to do what that the renunciation of the right to admin- his attorney had satisfied himself from the ister on said estate, signed by Widow Mary authorities ought to have been done on July Warner, is null and void; and that the regis- 6th. There, unattended by any one to look ter of wills issue letters of administration on after her interests, and confronted by the said estate according to law.”

attorney, zealously trying to protect the esArgued before MITCHELL, C. J., and tate of the man she was about to marry, DEAN, FELL, BROWN, MESTREZAT, and she signed the paper purporting on its face POTTER, JJ.

to be an acknowledgment that she knew

what estate he owned and possessed. The D. F. Patterson, B. F. Mevay, and S. A.

couple then proceeded to the parsonage and Johnston, for appellant. J. M. Stoner and

became man and wife. Though the paper R. T. M. McCready, for appellee.

was read to her, it gave her for the first time

information that ought to have been given BROWN, J. The renunciation by the ap- to her on or before July 6th, if the agreement pellee of her right to administer on the estate of that day is to have any effect. That she of her deceased husband was clearly due to is now to be concluded by the information her mistaken belief, under the facts as de- imparted to her under the circumstances veloped at the hearing in the court below, stated offends reason and good conscience; that she had relinquished all of her marital for, when on her way to the altar to take the rights by her antenuptial agreement. This most sacred vow assumed by woman it can was originally executed July 6, 1897, and by hardly be seriously contended she could, in a its terms the prospective husband, nearly 80 moment, have acted with the intelligence and years of age, and possessed of a competence, proper apprehension required by the law to cut off the woman he was about to marry, 20 make binding upon her the contract which years his junior, without a cent for her sup- excludes her from all participation in her port from his estate after his death. It is husband's estate. so harsh and unreasonable on its face as to The learned court below, in overruling the raise the presumption that he designedly con- exceptions to the findings and conclusions of cealed from her the value of his estate at the the judge who heard the application for the time it was executed. Bierer's Appeal, 92 revocation of the letters granted to the appelPa. 265. The presumption that the appellee lants, was of opinion, without regard to the was not informed of the value of his estate testimony of Mrs. Warner, that the antenupat that time becomes almost conclusive in the tial agreement was unreasonable, and that light of the testimony of his attorney who there was a presumption of concealment by prepared the paper and witnessed its execu- the decedent which had not been overcome tion. Having subsequently, as he testified, by his sons. While we adopt as correct all

that the learned president judge says in holding, without regard to anything testified to by Mrs. Warner, that the antenuptial agreement was unreasonable, and that the presumption of concealment by the decedent had not been overcome by his sons, at this time and at this stage in the settlement of the estate we will pass only upon the question of the right of administration and of the duty of the register in granting letters. Though, as the widow of the deceased, not bound, according to the testimony now before us, by her antenuptial contract, the appellee is entitled to letters of administration, the regis ter is not obliged to grant them to her if it be inexpedient to do so. "Other things being equal, the widow is entitled to be preferred.” Wilkey's Appeal, 108 Pa. 567. But those otherwise entitled to administer may be reJected on account of the inexpediency of committing the trust to them. Ellmaker's Estate, 4 Watts, 34; Bieber's Appeal, 11 Pa. 157; Cornpropst's Appeal, 33 Pa. 537. With the antagonisms and differences existing between the appellee and the two sons of her husband by his former marriage, the best in. terests of the estate will be promoted by committing the administration of it to some disinterested fit person to be appointed by the register of wills, if the parties to this controversy cannot agree upon an administrator. By such appointment, though the present differences may continue, controversies and disputes otherwise certain to take place between the appellee and her stepsons will be avoided.

The decree of the court below is reversed, and the record remitted, with direction that the register of wills of the county of Allegheny grant letters of administration on the estate of E. S. Warner, deceased, to some disinterested fit person, natural or artificial, to be named by him, at his discretion, if the appellants and appellee cannot agree upon an administrator, the cost of this appeal to be paid out of the estate; this decree to be without prejudice to the right of the appellants to again raise, on distribution or in proceedings in partition, the question of the validity of the marriage contract, if, in view of what we have said, they can submit the proofs requisite to sustain it as binding upon the appellee.

fall off or taxes increase it would be in serious peril, and where the orphans' court judges, who were familiar with the property, determined that it was for the best interests of all parties concerned that the sale should be made.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Martha McD. Smith. From a decree ordering the sale of her real estate, Anna H. Lyon and others appeal. Affirmed.

The orphans' court entered the following decree: “And now, to wit, July 25, 1903, upon consideration of the petition, the answers filed, the testimony taken, and after argument of counsel, the court being of the opinion that it is to the best interest and advantage of all the parties interested in the land described that the same should be sold at private sale, that the price offered there. for is a higher and better price than could be obtained at public sale, and that the same may be sold without injury or prejudice to any trust, charity, or purpose for which the same is held, and may be done without the violation of any law which may confer an immunity or exemption from sale or alienation, therefore the Fidelity Title & Trust Company is hereby appointed trustee for all parties interested in said land, for all vested and contingent interests, and for all persons not yet in esse under the will of the decedent. And it is ordered, adjudged, and decreed that the said Fidelity Title & Trust Company, trustee, shall make private sale to Henry W. Oliver of the land and premises described in the petition for the price and upon the terms and conditions therein set forth, freed from any contingent remainder or executory devise limited thereon and any entailment thereof, and the said trustee is hereby authorized to execute and deliver a deed to the said purchaser upon his compliance with the terms of sale."

Argued before MITCHELL, O. J., and DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

W. K. Jennings and D. C. Jennings, for appellants. S. W. Cunningham and Sion B. Smith, for appellees.

(207 Pa. 604)

In re SMITH'S ESTATE,

Appeal of LYON et al. (Supreme Court of Pennsylvania. Jan. 4,

1904.) CONTINGENT REMAINDERS-JUDICIAL SALES

CONSTITUTIONAL LAW-VALIDITY. 1. Act April 18, 1853 (P. L. 503), providing for the sale of a decedent's real estate against the will of parties in interest sui juris, so as to divest contingent remainders and executory devises, is within the power of the Legislature.

2. An order of the orphans' court directing the sale of real estate under Act April 18, 1853, will not be reversed where the property, was heavily incumbered, so that if the rentals should

MESTREZAT, J. Martha McD. Smith died testate in 1880, leaving to survive her three sons and two daughters. By partition proceedings under her will, her three sons became seised of certain real estate for life, with remainder to the children or grandchildren of each, per stirpes, in fee, subject to a life estate given the widow, if any, with a provision that if any son should die leaving no issue his share should go to his surviving brothers and sisters for life with like remainders. One son died in 1893 without issue, and his sbare became vested in his two brothers and his two sisters for life, with remainders to their children or grandchildren, per stirpes, in fee. Each brother thereby became entitled to the undivided

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