Britton v. Thornton

George Shiras, Jr., for plaintiff in error.

C. E. Boyle, for defendant in error.

This was an action of ejectment brought on April 12, 1880, in the court of common pleas of the county of Fayette and state of Pennsylvania, by John Russell Thornton, a citizen of that state, against George A. Wilson, a citizen of Ohio, and William Britton and George E. Hogg, citizens of Pennsylvania, his tenants at will; and removed by Wilson into the circuit court of the United States for the Western district of Pennsylvania. At the trial in that court, before a jury, both parties claimed title under the will of Joseph Thornton, who died on October 25, 1839, seized of the land; the plaintiff as his surviving grandchild, and the defendants through Eliza Ann Thornton; and the following facts were admitted:

Joseph Thornton's will, which was duly admitted to probate, besides devising certain real and personal property to his widow for life, directing his executors to pay at their discretion to his son Nelson the sum of $365 a year during his life, and making other devises and bequests, contained the following:

'Item: I give and devise to my son William S. Thornton, during his natural life, all that body of land lying in Luzerne township, Fayette county, on which he now lives, consisting of four parcels adjoining each other, which I purchased of Samuel McMullin, Nicholas Miller, Eliza Coleman, and the heirs of Abraham Merritt, to hold the same without impeachment of waste.'

'Item: To my grandson, Joseph Thornton, son of my said son William, I give and devise all the lands in the preceding item devised to his father, to possess and enjoy the same from the death of his father, forever: provided, that [if] the said Joseph die in his minority, and without lawful issue then living, the said land shall revert and become a part of the residue and remainder of my estate hereinafter disposed of.'

'Item: To Eliza Ann Thornton, natural daughter of my said son Nelson, I give and devise all that plantation bought of Andrew Porter and John Davis, lying on the Monongahela river, in Luzerne township, adjoining Eliza Crawford, Thomas Neelan, Joseph Crawford, and Joseph Crawford, Jr., containing, as is supposed, two hundred and sixty acres, besides allowances, be the same more or less, she paying out of the rents to my executors the sum of three hundred and sixty-five [dollars] annually during the life of my said son Nelson: provided, that should the said Eliza Ann die in her minority, and without lawful issue then living, the land hereby devised shall revert and become a part of the residue of my estate hereinafter disposed of.'

'Item: All the rest and residue of my estate not heretofore disposed of I give, devise, and bequeath to my executors; and I do hereby authorize and empower them, or the survivor of them or their successors in the said office, to sell and convey any and all of my real estate not herein fully disposed of, if, in their discretion, they shall think it for the advantage or convenience of my estate, and whenever they may think proper so to do; and in the mean time to receive the rents, issues, and profits of the real estate, and the proceeds of the personal, and the dividends of all stocks, and apply them to the payment of the legacies of this my will.

'It is my will that the rents, issues, and profits of the real estate given to my executors, or the proceeds thereof, if sold, and the dividends of all my estate given to them, or the proceeds, if sold, and the proceeds of all other personal estate not required to pay the debts and legacies heretofore given, be vested by my executors in stocks or put out at interest and suffered to accumulate until my eldest grandchild then living shall attain the age of twenty-one years, or until the decease of my son William, whichever shall first occur, and then the whole to be equally divided among all my grandchildren then living, and the children of any who may be dead leaving issue, such issue to take by representation. The said Eliza Ann, natural daughter of my son Nelson, to be considered a grandchild, and to be entitled to share as such; and in making such division the amount of the devise made to Joseph, son of my son William, and to the said Eliza Ann, according to an estimate of their present value, to be made by three men appointed by my executors or by the orphans' court, to be charged to them or their children as part of their respective shares.'

William S. Thornton died in 1852, before any of the testator's children had attained the age of 21 years. Eliza Ann Thornton, on January 1, 1856, married John S. Krepps, and died on January 23, 1857, without lawful issue then living, and leaving her husband her heir at law: and he, on November 16, 1872, conveyed the land in dispute to Britton, who, on March 8, 1873, conveyed an undivided half of it to Hogg; and on February 8, 1878, Britton and Hogg conveyed the whole to the defendant Wilson. Krepps died on November 16, 1873. The plaintiff, John Russell Thornton, was the sole surviving grandchild and heir at law of the testator, all the other grandchildren having died without issue.

There was conflicting evidence of the date of Eliza Ann's birth; the evidence for the plaintiff tending to show that it was February 12, 1836, and the evidence for the defendants tending to show that it was February 12, 1835. The defendants requested the court to instruct the jury that, William S. Thornton having died in the life-time of Eliza Ann, she, as grandchild of the testator, and by virtue of the residuary clause in his will, became entitled in fee to the land in dispute, and that the defendants, having succeeded to her title, were entitled to a verdict. The court refused this instruction, and afterwards instructed the jury that the case turned upon their determination of the contested question of fact, whether she died before or after attaining the age of 21 years; and that if she died under that age, and the plaintiff was the only living descendant of the testator, he was entitled to recover. The defendants put in evidence a certified copy of a record of the circuit court at May term, 1878, of an action of ejectment between the same parties for the same land, in which a special verdict was returned finding the facts above admitted, and also that Eliza Ann at the time of her death was above the age of 21 years, and a judgment was rendered thereon, which was still in force and unreversed. The defendants requested that the jury might be instructed that that verdict and judgment were conclusive evidence that Eliza Ann was of age at the time of her death, and therefore the verdict in this case must be for the defendants. This instruction was refused.

The defendants then put in evidence a certified copy of a record of the court of common pleas of Fayette county at March term, 1858, of an action of ejectment for the same land, brought by Joseph Thornton's executors against Krepps, (under whom these defendants claimed title,) by which it appeared that a verdict was returned for Krepps under an instruction of the court that he was entitled to possession as the surviving husband of Eliza Ann, and judgment was rendered thereon, which was still in full force and unreversed. The defendants requested the court to instruct the jury that the verdicts and judgments in the two cases, records of which had been put in evidence by them, availed in law to conclude the controversy, and the verdict in this case should be for the defendants. The court refused this instruction, because by the record of 1858 it appeared that the only matter determined was that Krepps, as surviving husband of Eliza Ann, took a life estate as tenant by the curtesy, upon any construction of the will of Joseph Thornton, and whether she died under or above the age of 21 years.

The defendants excepted to the refusals to instruct and to the instructions given in this case, and, a verdict being returned for the plaintiff, sued out this writ of error.

[Argument of Counsel from page 531 intentionally omitted]

GRAY, J.