Cheetham v. Muhlenberg

Citations

• 133 Pa. 309
• 19 A. 547
• 1890 Pa. LEXIS 903

Syllabus

<p>(a) A testator owned three houses situated side by side. He devised two of them, with their appurtenances, to his son, and devised the third to Ms daughter. Annexed to the latter devise was a reservation, for the use of the owners and occupiers of the houses given to the son, of a right of passage along a certain aliey.</p> <p>(b) This alley adjoined the house devised to the daughter. The second story of one of the houses given to the son extended over the alley, and the cellar of the same house extended under it, to the foundation wall of the daughter’s house. The alley way, supported by a series of arches in the cellar, was used by the occupants of each house:</p> <p>1. The alley way was an integral part of the house thus extending over and under it, and the devise of said house to the son accordingly passed to him the title to the soil of the alley. Such a positive grant cannot be taken away by a mere implication arising from the reservation in the other devise.</p> <p>2. The reservation was wholly useless, as in view of the situation of the alley and its previous use, the devisees of both houses would have been entitled to use it without any such provision: it was a manifest blunder in the will, and does not justify an implication of an intention to give the daughter title to the alley.</p>