White v. Williamson

The opinion of the court was delivered, November 22,1858, by Strong, J. — Numerous errors have been assigned to this record, but the view which we take of the case, renders a separate discussion of each unnecessary. We are of opinion, that the title to that'moiety of the land in dispute, which was con [252] veyed by Jacob Weaver to Henry S. Weaver, became duly vested in the defendant, by deed of the executors of the will of Plenry S. Weaver. The will gave to the executors plenary power to sell, and their deed was conclusive evidence of a sale under the power. Whatever interest, therefore, Henry S. Weaver had at the time of his death in that moiety, was divested by that conveyance. It is strenuously urged, however, that the deed .on its face, shows that it was not an execution of the power given in the will, and that the testimony in the cause, establishes that the executors received no consideration for the conveyance. This deed is a deed of bargain and sale. It recites an indebtedness of the testator to the grantee, in the sum of $500 ; an agreement by Mary M. Weaver, to accept the land in payment of the debt, and also an additional pecuniary consideration of $100, paid by her, and in consideration thereof, conveyance of the land. The plaintiffs now, after the lapse of nineteen years, attempt to show, that in reality there was no debt due. The only evidence to sustain their allegation, is in the testimony of one of the executors, who joined in the execution of the deed, and it comes far short of what is necessary. That witness proves, that he saw no written evidence of the debt exhibited by the grantee at the time the deed was made ; but he proves also, that such an indebtedness was asserted by Mrs. Weaver, and that her assertion was supported by Jacob Weaver, who claimed to have placed the money in the testator’s hands for her. All this, instead of disproving the debt, was considerable evidence of its existence. What was exhibited to his co-executors, of course the witness could not know, and they were not called. But were there nothing more, the compromise of a doubtful debt was a sufficient consideration. The court below was therefore right in ruling that the power was well executed, and the deed was operative to vest in Mrs. Weaver an undivided half of the land. Then what title did the plaintiffs show to the other half? Their father, through whom they claimed, was a son of the defendant. Their claim is, that at the time of his death, he was a tenant in common with his mother, and that she had ousted him of the possession. We discover no evidence in the case from which the jury would have been warranted in finding an ouster, even if Mrs. Weaver and her son, were tenants in common. An ouster of one tenant in common by his co-tenant is not to be presumed. It must be evidenced by some unequivocal act or acts, irreconcilable with joint tenure. We have- sought in vain through this record for any such evidence. This is all that is needed to warrant an affirmance of the judgment. But it is. by no means clear, that Henry S. Weaver and his mother, were tenants in common of the land. The title to this [253] remaining moiety had been in Jacob Weaver. On the 20th of August, 1811, he executed a covenant to stand seised of it. to uses, or rather, a declaration of trust, for the use of Mary M. Weaver and her children. The declaration recited as its consideration, that Peter Horbach, the father of Mrs. Weaver, had deposited with the covenantor, to be laid out in land, the sum of $400, for the use of the wife and children of Henry A. Weaver, the husband of Mrs. Weaver. Subsequently to this declaration of trust, Jacob Weaver conveyed this moiety of the land to Benjamin F. Weaver, who by deed, dated October 4, 1830, declared that he held the same in trust for Mary M. Weaver and her children and their heirs. This last declaration recited as its consideration the payment of one dollar by Mrs. Weaver. We need not stop to prove that the deed of Benjamin F. Weaver, neither added to, nor diminished the interest which the defendant had under the first declaration of trust made by Jacob Weaver. Under that declaration, what interest did she take? Was it a life estate, with remainder to her children, or was it a tenancy in common with them ? The court below thought it was the former, and so instructed the jury. We incline to concur in that opinion. Under that declaration, the children take as a class, not individually. The grant is not to the children then in esse, but it embraced those after born. It was a gift of a father for the benefit of his descendants. If the time of the distribution was the date of the gift, then after-born children must have been excluded; for, where a gift is to a class, the rule is, that the time of distribution defines the individuals who constitute the class. But if the word “ children” is to be regarded as a word of purchase, and not of limitation, as doubtless it is, it is difficult to suppose that the intent of the donor, was to give to the mother and the children, then living, an undivided fee simple in the land, to each an equal interest. Yet such must have been the effect of the grant, if the construction for which the plaintiffs contend be correct. The presumption always is, in cases of conveyances by will or deed, from an ancestor to his decendants, which are gifts, not sales, that they were made in view of the intestate laws, and consequently those nearest in kin are to be preferred, unless the words of the will, or gift, forbid such a construction. Peter Horbach, gave the money for Mrs. Weaver and her children. The title to the land follows the money which purchased it. We think, therefore, that under the gift of her father, and the original declaration of trust by Jacob Weaver, Mrs. Weaver took a life estate in one moiety of the land, with remainder to all her children then born, and that might thereafter be born. The plaintiffs had consequently no right to possession during the life of Mrs. Weaver. [254] This disposes of the whole case, and relieves us from saying more than that none of the errors assigned are sustained. Judgment affirmed.