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KAUTZ v. KAUTZ ET AL. (11/13/50)

November 13, 1950

KAUTZ, APPELLANT,
v.
KAUTZ ET AL.



Appeal, No. 138, March T., 1950, from decree of Court of Common Pleas of Westmoreland County, in Equity, No. 2286, in case of George Kautz v. William H. Kautz et al. Decree affirmed.

COUNSEL

Gene E. McDonald, with him Henry E. Shaw and Scales & Shaw, for appellant.

Carroll Caruthers, with him Frank A. Rugh, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 365 Pa. Page 451]

OPINION BY MR. JUSTICE LADNER

This is an appeal from the Common Pleas Court of Westmoreland County, Sitting in Equity, dismissing a bill in partition and entering a decree for the defendant,

[ 365 Pa. Page 452]

Harold Kautz. The sole question involved was the nature of the title conferred by a deed dated October 19, 1945, in which Anna M. Kautz conveyed the property in question to her son, Harold Kautz. This question in turn depended upon the character of the estate devised to Annie M. Kautz by her husband, George Kautz, who it is stipulated was the common source of title.

The said George Kautz died seized of the property in question on January 11, 1911, leaving a last will and testament dated January 10, 1911, by which he provided as follows: "I do hereby leave all my real estate to my wife Annie M. Kautz so long as she remains my Widow and keeps my three children together and in case of emergency money left to these may be used toward their support Pennsylvania relief goes to my wife Annie M. Kautz."

Annie M. Kautz took possession of the property and resided there until the date of her death, April 22, 1948. It is stipulated that she complied with the terms of her husband's will in that she kept and cared for her three children during the period of their dependency and that she never remarried.

Prior to her death the said Annie M. Kautz, by deed dated October 19, 1945, and recorded, conveyed said property to her son, Harold Kautz. After her death, George Kautz, one of the brothers, filed this bill of partition claiming to be a co-owner of the real estate in question contending that the will of his father devised to the widow only a life estate.

The court below held that the widow took a defeasible fee conditioned upon her remaining a widow and as she did not remarry, her deed to her son Harold ripened into an indefeasible fee absolute upon ...


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