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UNITED STATES v. 0.20 ACRE

April 17, 1947

UNITED STATES
v.
0.20 ACRE OF LAND IN NEW ALEXANDRIA BOROUGH, WESTMORELAND COUNTY, PA., et al.



The opinion of the court was delivered by: GOURLEY

This case comes before the Court on appeal from and exceptions to the award of the Board of Viewers appointed by this Court to assess damages by reason of the condemnation of a certain tract of land situate in Westmoreland County, Pennsylvania, which was appropriated by the United States of America.

In the appeal from the award of viewers and the exceptions filed to the award made, it is contended that the viewers erred in finding that Angelo Assini and Mary Assini, his wife, were vested with fee simple title or ownership to the real estate condemned.

 The case has not been argued before this Court but was assigned for opinion on the 24th day of March, 1947. Counsel by written stipulation present the case to the court on an agreed statement of facts:

 '1. That J. Renwick Johnston et ux by deed dated 31 March, 1870, recorded in the Recorder's Office of Westmoreland County, 8 April, 1870, in deed book 66, page 382, conveyed to Eliza Moorhead (widow) a certain lot situate in Derry Township, now New Alexandria Borough, Westmoreland County, Pennsylvania, fronting 66 feet on the northerly side of Gay Street and extending back therefrom of even width, 160 feet, which includes the land taken by the United States in this proceeding.

 '2. That the said Eliza Moorhead died testate July 8, 1892, and by her last will and testament dated 16 June, 1892, recorded in the Office of the Register of Wills of said Westmoreland County in Will Book 8, page 563, provided, inter alia as follows: 'I give, devise and bequeath all that certain lot of ground containing one-fourth of an acre, more or less, situated in Derry Township, Westmoreland County, Pennsylvania, facing Gay Street in the Borough of New Alexandria, County and State above named, on the West by lands of Will Workman, on the North by lands of Will Workman, on the East by road leading to the Union Cemetery, on which is erected a dwelling house of logs and frame, a frame stable and other outbuildings, to my son, James K. Moorhead and my daughter Ida B. Moorhead jointly each having an equal share of said described property, and further that said James K. Moorhead and Ida B. Moorhead can make no disposition of said property in part or whole by sale or any other way without mutual consent of both parties, and further if my son James K. Moorhead is taken away by death without issue before my daughter Ida B., his share to revert to my daughter Ida B., and further if my daughter Ida B., is taken away by death without issue her share to revert to my son James K. and further if my son James K. and my daughter Ida B. are taken away by death without issue the above named and described property, if not sold, to return to my heirs.'

 '3. James K. Moorhead died testate, January 4, 1927, unmarried and without issue, and by his last will and testament dated 24 December, 1926, recorded in the Office of the Register of Wills of said Westmoreland County, in Will Book 24, page 26, after certain bequests of personalty, provided: 'Fifth -- I give and bequeath unto my sister Ida B. Moorhead all the residue of my estate.'

 'By codicil thereto dated 29 December, 1926, recorded as aforsaid, after certain legacies, provided: 'In case my sister, Ida B. Moorhead, who was made my residuary legatee, should precede me in death, then, in that event, I give and bequeath the remainder of my estate to The Women's Missionary Society of the New Alexandria Presbyterian Church in memory of my Mother, Eliza Moor Moorhead. This fund to be known as the Eliza Moor Moorhead Memorial, to be properly invested by said Women's Missionary Society and the income derived therefrom devoted to the regular missionary work of said society.'

 '4. Ida B. Moorhead died testate, October 4, 1927, unmarried and without issue, and by her last will and testament dated 4 August, 1927, recorded in the Office of the Register of Wills of said Westmoreland County in Will Book 24, page 187, after certain bequests of personalty, provided: 'All the rest, residue and remainder of my estate, real, personal and mixed, I do give, devise and bequeath unto The Women's Missionary Society of the New Alexandria Presbyterian Church to be held by the said Women's Missionary Society in trust, in memory of my mother, Eliza Moor Moorhead, to be properly invested and to use the income derived therefrom for the regular missionary work of said Women's Missionary Society.'

 '5. That said lot was not sold by the said James K. Moorhead and Ida B. Moorhead.

 '7. In case it is determined that Ida B. Moorhead did not have an estate in fee simple in said premises, the heirs of Eliza Moorhead and their respective interests are as follows:

 'I. Martha Moorhead Keener, deceased

 (a) Mary Keener Lohr, deceased

 1. Alex M. Lohr, 1/40

 2. Delle Lohr Grant, 1/40

 3. Odessa Lohr Damato, 1/40

 4. Mary Gladys Lohr, 1/40

 (b) Sue Keener, Ross, ...


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