Waters v. Margerum

The opinion of the court was delivered, by Sharswood, J. — The deed by George K. AVaters, administrator de bonis non with the will annexed of George Knoppenberger, unquestionably conveyed no title to the plaintiff. The power to sell given by the will to the executors was not for the payment of debts, but for distribution among legatees and for investment. Ross v. Barclay, 6 Harris 183, decides that such an administrator, under the 67th section of the Act of February 24th 1884, Pamph. L. 86, may execute a power to sell in order to bring the land into a course of administration, but not to carry out a trust for a collateral purpose, such, for instance, as here, to turn it into money for convenience of partition..-)? If upon the true construction of the'will and codicil of George Knoppenberger the children of Catharine AVaters took an estate in remainder in fee simple after the death of their mother, the plaintiff confessedly had no title. Upon the death of Catharine Goodrich without children her share descended to her two half-brothers, George K. and Aaron AVaters. Aaron’s interest was divested by the sheriff’s sale in 1847 to Joseph Paxton, and the estate of George passed in 1864 to Benjamin J. Frick. if the children of Catharine AVaters took upon the death of their mother,estates tail, each in one undivided third, without cross-remainders, then upon the death of Catharine Goodrich without issue, her one-third vested in the trustees of St. John’s Church, to whom was devised the ultimate remainder in fee: and so in like manner as to the share of Aaron upon his death without issue. Thus George would have been seised of one-third in tail, with remainder to St. John’s Church in fee, and St. John’s Church would have been seised in fee of the remaining two-thirds. The sheriff’s sale in 1864 conveyed George’s interest, and the vendee took an estate for the life of George at least in his one-third. But conceding to the plaintiff all for which he contends, that Catharine AVaters had an estate for life, remainder to her children as tenants in common in tail, and by force of the devise over in default of the issue of all of them, cross-remainders in tail by implication between them — remainder to St. John’s Church in fee —then on the death of Catharine Goodrich without issue the remainder in tail in her share vested in George and Aaron, and on the death of Aaron without issue, the remainder in tail in that third as well as Catharine Goodrich’s, in other words, in the moiety vested in George alone, so that he thus became seised in tail in the whole, remainder to St. John’s Church in fee. Being so seised, the sheriff’s deed conveyed his life interest in the entirety to Benjamin J. Frick in 1864. What, indeed, the exact interest of the grantee was, is a question now more of curiosity than of any practical importance. [45] Littleton (§ 613) states distinctly that the grantee of tenant in tail of all his estate hath no other estate but for term of life of the tenant in tail. Mr. Butler, in his note, says that this is not to be understood literally, that the grantee has but an estate for life, and that his estate is ipso facto determined by the death of the tenant in tail; for upon the death of the tenant in tail, it is defeasible by the issue. Still it has continuance till it is so defeated : Co. Litt. 331 a, note 286. Littleton’s opinion was adopted and followed in the case of Tooke v. Glasscock, 1 Saund. 250. The contrary, however, was ruled in an elaborate opinion by Lord Holt in Machell v. Clarke, 2 Salk. 619, 7 Mod. 18, Com. 118, 2 Lord Raym. 778, Holt 615, and that decision has been since adhered to, as Sergeant Williams admits, 1 Saund. Rep. 260, note 1, Stapleton v. Stapleton, 1 Atk. 8, Goodright v. Mead, 3 Burr. 1703, and the most celebrated text-writers agree: 1 Preston on Estates 436, 1 Preston on Abstracts 363, Butler’s note to Co. Litt. 331 a: so that the grantee of tenant in tail of all his estate takes a base fee, according to these authorities, liable to be defeated on the death of the tenant in tail by the entry of the issue. So the law is stated by President Wilson in his charge in Gause v. Wiley, 4 S. & R. 513. It was held, however, by this court in Elliott v. Pearsall, 8 W. & S. 38, that a sheriff’s sale of an estate of a tenant in tail does not so divest him of the inheritance that he may not afterwards execute a deed in pursuance of the Act of Assembly of January 16th 1799, 3 Smith 338, for the purpose of barring the issue in tail. It is considered in that case that though the tenant in tail may part with the enjoyment of the land during his life by a deed of bargain and sale, or the sheriff may sell it on an execution, still he continues to be seised of the inheritance. It is clear, however, beyond any reasonable doubt, that if George K. Waters was tenant in tail, an indefeasible estate for his life passed by the deed of the sheriff .to his vendee; and as George K. Waters at the time of the trial below was still in full life, such an estate has vested in his vendee, or those claiming under him. Qüacunque viá data, then, the plaintiff had no right to the possession, and no title to recover in ejectment. It is not our duty to give any opinion as to what estate the children of Catharine Waters took under the will and codicil of George Knoppenberger, as the determination of that question is not necessary to the decision of the case before us. Judgment affirmed.