Hanbest v. Grayson

<p>Appeal, No. 227, Jan. T., 1902, by plaintiffs, from decree of C. P., No. 4, Phila. Co., Dec. T., 1901, No. 2746, on bill and cross bill in case of John DeHaven Hanbest, Hannah A. Planbest, Naomi J. McCurdy, Anthony A. Hirst, Executor of Catherine Hayes, Deceased, and Emily Farrell v. George Grayson, Executor of Julia Ann Hanbest, Deceased, and John Kane.</p> <p>Bill in equity and cross bill.</p> <p>The case was heard on bill and answer and cross bill and answer.</p> <p>The substance of the pleadings are stated by Willson, J., as "follows :</p> <p>The controversy turns upon the proper construction to be ' given to the will of Julia A. Hanbest, who died on December 30, 1900. The will, which was dated November 28, 1900, after reciting that she was the owner of property known as the Blue Bell Hotel, situated on Woodland avenue, in the twenty-seventh'ward of this city, contained the following language : “The hotel I have rented to one John Kane for the term of three years, commencing June 1st, 1897, for seventy-five dollars a month, payable in advance, it is my desire that my executor hereinafter named, in case of my death before the expiration of said lease, shall collect the rents of said property as they become due, and, after paying all taxes and legitimate charges upon said premises, to divide quarterly the net income of said rent equally between John DeHaven Hanbest, Hannah A. Hanbest, Naomi J. McCurdy, Catherine Hayes, and Emily Farrell; I likewise direct my said executor to give my said tenant three months’ notice before the expiration of his present term, and at said time and upon the vacation of said property by the said Kane, I authorize my said executor to sell the said property, including said adjoining premises, which rents now for eight dollars a month, either at public or private sale, for the best and highest price that can be obtained for the same, giving him full discretion in this behalf: and upon such sale he shall make good and sufficient deed of conveyance therefor that shall vest the title in the purchaser or purchasers thereof in fee simple.”</p> <p>The said Catherine Hayes died on February 23, 1901, and the executor of her will, Anthony A. Hirst, represents her interest in this proceeding. One of the defendants in the original bill, George Grayson, was the executor appointed by Julia A. Hanbest in her will, which was duly proved. Without giving any notice to the tenant, John Kane, before the expiration of his lease, and while the said Kane was still in occupation of the premises as tenant, on December 12, 1901, the said Gray-son, executor, entered into articles of agreement with the said John Kane, for the sale of a certain portion of the real estate which he was authorized to sell by the provisions of the Han-best will, including the said Blue Bell Hotel, for the sum of $28,000. The plaintiffs in the original bill allege that the proposed sale to John Kane, contemplated and provided for by the said articles of agreement, was such a sale as the executor had no authority to make. It is contended by these plaintiffs that the provisions in the Hanbest will that the executor should give Kane, the tenant, three months’ notice before the expiration of his then present term, and that upon the vacation of the property by said Kane, the executor might sell the same, constituted a condition precedent to the executor having any lawful authority to sell the property. It is also claimed that John Kane, by being allowed to remain in possession of the property, was given an unfair advantage over other persons who might have desired to purchase the property, and that thereby he was enabled to purchase it at a low and inadequate price; and further, that Grayson, the executor, by selling a portion of the property divided from the rest by the middle line of Seventy-third street, has seriously impaired the value and marketability of that portion of the property which was not sold to Kane. For the reasons stated the plaintiffs ask that Grayson, the executor before stated, may be restrained from selling said property to John Kane, and that John Kane may be required to deliver up for cancelation the articles of agreement before referred to.</p> <p>The cross bill filed by Kane against the plaintiffs in the original bill, and also against Grayson, the executor sets out the articles of agreement with Grayson, alleges that the agreement was executed by Grayson, with full authority to make the same; that the defendants in the cross bill, who were the plaintiffs in the original bill, had filed the said original bill, and, also, that on or about December 18, 1901, the said plaintiffs in the original bill had executed a certain deed poll or writing undertaking to elect to take the said real estate in kind, without conversion, and had caused said writing to be filed in the office of the clerk of the orphans’ court of this county. It is also averred by the said plaintiff, John Kane, that the filing of the said deed poll constituted a cloud upon the title to the property. He therefore asks that, upon payment of the balance due under the terms of his articles of agreement entered into with the said executor, George Grayson, the said executor be directed to make proper conveyance of the property to him, the said John Kane, and that the defendants in the cross bill, who were the plaintiffs in the original bill, be restrained from asserting any right to take the said premises which the said Grayson, executor, had agreed to sell to him, John Kane, and from interfering in any way with the said executor in the sale and conveyance of the said premises.</p> <p>The court entered a decree in favor of the defendants in the bill and the plaintiff, Kane, in the cross bill.</p> <p>Error assigned was the decree of the court.</p>