Shutt v. Rambo

A testator devised to his daughter a farm “ in fee,” and gave other real estate in fee to other children; the concluding clauses of his will were as follows: “ It is my will that should any of my children die without heirs, then the property hereby bequeathed to them shall revert to my estate. It is my will that all my other property, personal, real or mixed and wheresoever situated, not herein particularly mentioned and referred to, shall be sold by my executors, the proceeds divided equally among my children.” Reid, that the daughter took a fee. '

Error to the Court of Common Pleas of Montgomery county: No. 285, to January Term 1868. This was an amicable action and case stated, entered January 2d 1868, between Emma P. Rambo, plaintiff, and Samuel Shutt, defendant. The case contained the following facts:— The plaintiff is a daughter of Nathan Rambo, who died in 1858, leaving a will dated the 16th day of May 1857, and proved March 11th 1858. The said testator also left surviving him a widow named Ann Rambo and seven children, of whom Emma P. Rambo the plaintiff, who never was married, is one. The testator left also a very large estate, consisting principally of'real estate, which he devised to his wife and children, and inter alia as follows:— “Item 7. I give, devise and bequeath unto my daughter Emma Rambo, the farm, hereditaments and premises known as the Shainline farm, containing about 110 acres of land, in fee, charged and chargeable nevertheless with the annuity or yearly sum of $150, to be issuing and payable out of the said farm, hereditaments and premises, to my wife Ann Rambo, during her life, by two even and equal half-yearly payments in every year; the first of the said half-yearly payments to be made at the end of six calendar months next after my decease.” The whole of the said last will and testament is made part of this case. On the 6th of October last past, the plaintiff sold to defendant the farm in the 7th item mentioned, under the following articles of agreement: “ This agreement made the 6th day of October, A. d. 1867, between Emma P. Rambo, &c., and Samuel W. Shutt, &c., witnesseth, that said Emma P. Rambo, for the consideration hereinafter mentioned, has this day sold to said Shutt, all that certain farm of about 110 acres of land, known as the Shainline farm, in Upper Merion township, be the same more or less, and the said Emma hereby agrees to make and deliver to said Shutt a good and sufficient deed in law, and full possession of said farm and buildings thereon, on the 1st day of December, A. D. 1867, free and clear of all encumbrances, except as hereinafter excepted, and in consideration of the premises said Shutt agrees to pay to said Emma P. Rambo the sum of $12,000, as follows&c. On the 1st day of December, 1867, the plaintiff tendered defendant a deed for the above-described premises, which it is admitted was in all respects legal and valid, except that the defendant is advised and believes that under the said will of Nathan Rambo, the plaintiff does not hold a fee-simple title to said farm, whereupon he refused to accept the same. (See 24th item of said will.) Should the .court be of opinion that the plaintiff holds a fee-simple title thereto, then judgment to be entered for plaintiff, and specific performance of said agreement be decreed; should the Court be of opinion that the said plaintiff has not a fee simple in said farm, then judgment to be entered for the defendant. The 24th and 25th clauses of the will are as follows:— “ Item 24th. It is my will that should any of my children die without heirs, then the property hereby bequeathed to them shall revert to my estate.” “ Item 25th. It is my will that all my other property, personal, real or mixed, and wheresoever situated, not herein particularly mentioned and referred to, shall be sold by my executors, the proceeds divided equally among my children.” The court (Chapman, P. J.) entered judgment for the plaintiff, which the defendant, on a writ of error taken by him, assigned for error.