Dauler's Estate

Opinion by Mr. Justice Brown, In 1849 George H. Dauler acquired by deed a tract of [206] land containing about six acres, fronting on Terrace street, in what was subsequently the fourteenth and is now the fourth ward, of the city of Pittsburg. Its frontage on Terrace street was about 365 feet and it ex-' tended back to what is now Alliquippa street — a distance of about 750 feet. Darragh street extends along one side of it between the two streets named. Between 1880 and 1890, Dauler sold from this tract four lots fronting on Terrace street, each extending in depth from that street 240 feet. At that distance from Terrace street he erected a fence from Darragh street across the tract. At the time, of his death he had but one lot left which fronted on Terrace street. Its width on that street was 136.14 feet and on it there was a dwelling house in which he lived. In 1901 he sold a lot fronting 125 feet on Darragh street, beginning at a point 240 feet from Terrace street. He died in 1907, having executed his will in 1900, and the following from the third and ninth clauses of it give rise to the present controversy: “I give and devise the dwelling house in the fourteenth ward, Pittsburg, now occupied by us, with the ground thereto attached, fronting on Terrace street, near Darragh street, to my beloved wife, Elizabeth, for and during the term of her natural life. . . . To my daughter Otillia M. Johns, the lot of ground and the dwelling, 'the Homestead,’ situate on Terrace, street, near Darrah street, in the Fourteenth ward, Pittsburg, hereinbefore devised to my wife for life, subject to the life estate of my said wife.” The devise tó the daughter was one of a number he made to his children. By the fifteenth clause of his will he directed all of his estate not disposed of in the preceding clauses to be sold by his executors and that the proceeds be divided between his children and the children of a deceased child. When Thomas F. Johns, one of the two executors of the testator, was requested by his co-executor to join in the sale of the lot, consisting of three or four acres in the rear of the line 240 feet from Terrace street, he refused. Thereupon a petition was presented to the court below by the [207] other executor, asking for an order that said property be sold and that said Thomas F. Johns be directed to join in making sale of it. Upon the filing of this petition a citation was directed to all parties in interest, and Otillia M. Johns and her husband, the co-executor, filed answers in which they averred that, under the devise to her, she took not only the lot fronting 136.14 feet on Terrace street and extending back 240 feet, but all in the rear of 240 feet from Terrace street which had not been sold by the testator in his lifetime. From the order of the court granting the prayer of the petition we have this appeal. When the testator devised to his wife for life the dwelling house in the fourteenth ward of Pittsburg, then occupied by them, with the ground thereto attached, fronting on Terrace street, near Darragh street, and by a subsequent clause devised the same property to his daughter after the death of her mother, describing it as “the lot of ground and the dwelling, ‘the Homestead,’ situate on Terrace street, near Darrah street,” it is clear that he intended the lot of ground should be the same that had been appurtenant to his home. He had divided the original tract at a point 240 feet from Terrace street by erecting a fence there, and had sold four lots fronting on Terrace street, each with a depth of 240 feet from that street. He had unmistakably indicated, not only by erecting the fence, but by what he did by his deeds, executed more than ten years before he made his will, that he regarded the lots fronting on Terrace street as having a depth of 240 feet, and when he devised to his daughter the lot fronting on Terrace street, near Darragh, his intention as gathered from the will — which is to be read in connection with what he did — is so clear that parol testimony* could not, under the authority of any case, have been received to show that he said his daughter was to take under the devise not only the lot which he had so manifestly regarded as “attached” to his dwelling, but three or four acres, in the rear of it, which for years he had [208] treated as a separate and distinct piece of ground. What he gave to his daughter was a lot “fronting on Terrace street, near Darrah street,” “situate on Terrace street, near Darrah street.” The lot which the appellants would include in the devise does not front on Terrace street, nor is it “situate” on that street. It fronts on Darragh street and extends to Alliquippa street. Both these streets are its boundaries and this the testator knew when he devised to his daughter the lot fronting on Terrace street. That the court below had jurisdiction to entertain the petition to make the order appealed from is as clear as the intention of the testator. The lot which his daughter would take under the devise to her admittedly belonged to her father at the time of his death. Whether it passed to her under the ninth clause of his will, or, as part of his residuary estate, is to be disposed of under the fifteenth clause, involved the construction of his will, which was for the court below. It was properly construed, and the order which was made simply directs the executors to perform the duty imposed upon them by the will of the testator of converting into money, for the purpose of distribution, certain of his real estate not specifically devised. The court clearly had the power to make the order: Tyson’s Est., 191 Pa. 218. Decree affirmed at appellant’s costs.