"In fee simple: The decision on the provision of the will of Mrs. Gross: East Enders are interested: The supreme court now holds there was no separate use trust intended—an explanation why the previous decision was reversed." Pittsburgh Press, July 14, 1892, [p. 6]. Newspapers.com 141473689.
The supreme court yesterday astonished a great many lawyers and real estate men in this city by deciding that Matilda G. MacConnell held the property willed to her by Eveline Gross as a fee simple, and that a title conveyed by her was good and would stand against an attack.
This action was all the more wonderful in the eyes of the attorneys, as, in their language, the supreme court reversed itself.
The case in which the opinion was rendered and the decision made was that of MacConnell vs. Wright, and was brought by Mrs. MacConnell to recover a balance due on a piece of ground bought by Wright on Winebiddle avenue. Mr. Wright did not object to making the payment if he could get a title, but the supreme court had, a few months after his purchase, decided that Mrs. MacConnell only had a separate use trust interest in the estate, and for this reason Mr. Wright refused to pay for the property he had purchased.
Suit was at once brought by D. T. Watson and the case was argued in the court of common pleas No. 2, and then taken to the supreme court.
When Judge Ewing decided the case in No. 2 he said he was constrained to decide it in favor of Mr. Wright although he could not see that there was a separate use trust. He had, however, decided a similar case a year before according to his own opinion and the supreme court had overruled it. For this reason he said he would have to follow the decision and opinion of the supreme court and find for Mr. Wright.
Mr. Watson at once took the case to the supreme court, and that tribunal decided it yesterday in Mrs. MacConnell's favor, and by so doing declares her title in fee simple to the property to be good.
The point in the case was the construction which was to be placed upon the words "absolutely and in fee simple, free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control."
Mr. Evans held that this language constituted a valid separate use trust for Mrs. MacConnell, and that she could not sell the property. In this position he was sustained a year ago in the Lindsey [sic] case. Mr. Watson held that the language gave a fee simple title. The court sustained Mr. Watson's opinion.
This decision finally settles to the satisfaction of over 100 land owners in the East End the title under which they hold their property, and will throw upon the market the Gross estate property on Winebiddle avenue.
The history of Mrs. MacConnell and the trouble she has had over her property is interesting. She was the adopted daughter of Dr. Gross, who owned the property on both sides of Winebiddle avenue, between Liberty and Penn, in the Twentieth ward. When he died the property went to his wife, and on her death, by will, containing the above clause, it went to Mrs. MacConnell.
Mrs. MacConnell sold lot after lot to well known people, and Wiebiddle [sic] avenue became one of the handsomest residential portions of the East End. Finally Reese Lindsay determined to buy a lot of Mrs. MacConnell and brought the title to Mr. Evans for examination. Mr. Evans examined it and decided that the will created a separate use trust and that Mrs. MacConnell had no right to sell. Mr. Lindsay, on Mr. Evans' advice, refused to pay the purchase money, and Mrs. MacConnell brought suit, and this case the supreme court decided adversely to Mrs. MacConnell and sustained Mr. Evans' position.
The decision caused a great sensation in this city at the time, and left the titles of all the property sold on Winebiddle avenue by Mrs. MacConnell of no value. Now the court reverses itself, and Mrs. MacConnell can sell.
The opinion of the supreme court in the case reached this city this afternoon. After outlining the question upon which the court is called to rule, the opinion, which is by Chief Justice Paxson, says:
"We feel somewhat embarrassed by the fact that in MacConvell [sic] vs. Lindsay this very question was before us, arising upon the same will, and we then held that the paragraph above noted did create a separate use.
It is proper to say, however, that the question presented upon us at that time was the effect of the act of 1848 and the married persons' property act of June 3, 1887, upon separate use trusts. The intention of the testatrix, as we gather from the whole will, and from the circumstances surrounding her and her estate was entirely ignored and overlooked in that case."
The words of the will, standing alone, the court says, are sufficient to create a separate use trust, and that was the ground upon which the decision in the Lindsay case was based.
"The question," the court says, "now comes up in a suit between different parties, and with the facts agreed upon in the case stated, as now presented, it differs radically from MacConnell vs. Lindsay. It is our duty to declare the law as required by the changed circumstances, even though it should subject us to criticism on the part of those who do not look beneath the surface."
The court then enters into an exhaustive review of Mrs. Gross and her will, and concludes by saying: "From the broader light thrown upon this question by its reargument, and from the facts as embodied in the case stated, we are now constrained to hold that Eveline Gross, the testatrix, did not intend to create a separate use trust as to the property devised to Matilda Gross MacConnell."The court for this reverses the court below.