Westhafer v. Koons

Opinion, Mb. Cheep Justice Paxson : The act of April 18, 1853, P. L. 503, commonly called the Price act, is very broad in its terms, and its object was to unfetter real estate. It has now been in operation for nearly forty years, and title to a vast amount of real estate has been made under it. The second section provides that, upon application to the proper court, real estate may be sold, “ whenever real estate shall be entailed, or contingent remainders or executory [32] devises shall be limited thereon.”. It was held in Daley v. Koons, 90 Pa. 246, that Mary Westhafer took but a life-estate in the land involved in this controversy. The will of Samuel Westhafer, by which she derives title, after giving her an estate for life, provides: “And after her death to her children in fee, and in event of my said daughter Mary Ann dying without issue, I then, after her death, give and devise said farm given to her for life to my son William, and my daughters Susan, Amanda, aud Wilhelmina, share and share alike, or to their legal heirs and representatives, (children taking the parent’s share,) in fee.” It appears from the case stated that, in 1881, Mary Ann Westhafer, then Mary Ann Daley, with her husband, conveyed her life-estate in the premises to James Koons, the defendant; that subsequently the remainder-men before named contracted to sell the remainder in fee of said property to the said James for the consideration of four thousand five hundred dollars, and that an application was made to the Orphans’ Court of Cumberland county to ratify and approve said sale under the act of 1858; and that upon the twenty-fourth day of March, 1891, the said court made an order by which said sale was “ ratified, approved, and confirmed.” Notwithstanding this order of the court, the defendant Koons declines to take the title, for the reason that it is not a good, marketable title. The learned judge below held that the title was good, and entered judgment for the plaintiff in the case stated. Mary Ann Daley, to whom the estate was devised for life, is still living, although apart from her husband. She is now fifty-seven years of age, and childless. There is no probability, even if there is a possibility, of her ever having children hereafter, yet it was decided in List v. Rodney, 83 Pa. 483, that in the devolution of estates the law presumes that the possibility of bearing children exists, even when a woman has passed the age to which the ability to do so usually continues. It is very evident that there is a remainder contingent upon Mary Ann dying without issue. Should she have issue, the remainder to William, Susan, Amanda, and Wilhelmina would be worthless. It was to bar this contingent remainder that the application was made to the Orphans’ Court; there could have been no other motive, as but for this contingent remainder, the [33] remainder-men named could have passed the fee without an order of the court. This involves the regularity of that proceeding and its sufficiency to pass the title. The curative powers of the act of 1853 are very gro it. The fifth section provides: “ That the title of purchasers, under all such sales, . . . , shall be a fee-simple title, indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by error in the proceedings of the court.” We need not discuss the question how far a purchaser taking the title in good faith under this act, and paying the purchase money, would be protected by this curative provision. It would probably cover everything but want of jurisdiction in the court. Be that as it may, the purchaser here has not taken the title ; he objects to it on the ground that it is defective. He has a clear right to decline to take the title, unless the proceedings in the Orphans’ Court are in conformity to the act of 1853. He is not bound to take a defective title and trust for his protection to the curative provision of the act. The third section of the act provides that “ such sale .... may be decreed upon the petition of any trustee, guardian, committee, or person interested,” etc. The petition in this case was presented by William Westhafer, as executor of Samuel Westhafer, deceased. We are unable to see what the executor of Samuel Westhafer has to do with this real estate. It may be that William Westhafer, executor, and William Westhafer, devisee, are one and the same person; but the petition does not say so, nor is there any averment in it that he, the petitioner, has any interest in the real estate. Such facts can only be found inferentially from the similarity of names. This is an irregularity, but perhaps not a very serious one, after final decree. There is another flaw in the proceedings, however, which is serious. It is at least doubtful whether there is anything upon the face of the petition to give the Orphans’ Court jurisdiction. Waiving that question, it is very clear that the decree of the court below cannot operate to bar the contingent remainder. The fifth section of the act of 1853 provides “ that the petition shall set forth an explanation of the title, and of the purpose to bar the entail, defeat the contingent remainder,” etc. As before stated, the only object of this application.to [34] the Orphans’ Court was to defeat this contingent remainder; yet no such purpose is stated in the petition, although expressly required to be set forth therein by the act of assembly: Smith v. Townsend, 32 Pa. 442. We are of opinion that by reason of this defect the contingent remainder is not barred. It follows that the title is defective, and the defendant is not bound to accept it in this shape. We have heretofore had occasion to condemn this loose and careless way of proceeding under the Price act. In a matter so serious as the title to real estate, too much care cannot be exercised in the preparation of the papers and the conduct of the proceedings. Above all, it is essential to see that the case comes clearly within the act of 1853, and therefore within the jurisdiction of the court. The judgment is reversed; and judgment is now entered for the defendant.