Appeal, No. 215, March T., 1950, from judgment of Court of Common Pleas of Greene County, Sept. T., 1938, No. 168, in re Petition of Karl M. Baily for Declaratory Judgment. Judgment Affirmed.
Lloyd E. Pollock, for appellants.
Albert A. Sayers, with him G. Kirby Herrington, and Sayers & Hawkins, for Peoples Natural Gas Company, appellee.
J. R. Scott, with him Scott & Hook, for Earnest Clyde Varner, appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This matter came before the court below on a petition for a Declaratory Judgment, Answers thereto, and a stipulation of facts. The essential facts may be summarized as follows:
James Stewart devised by Par. 6 of his will, a 122 acre farm to his son John, 72 acres absolutely and the remaining 50 acres for life, and if John died leaving issue, then to such issue in fee. "But should my said son John die without issue living at the time of his death, then said fifty acres is to revert to my three daughters, Maria, Emma and Mary E. to be held by them in equal proportions and in fee simple. If either of my said daughters should at that time be dead, the share of such deceased daughter shall go to her heirs."
All three daughters conveyed by general warranty deeds their respective interests in the 50 acres to John. Two of the daughters died before John and one after him. John executed an oil and gas lease covering the whole farm of 122 acres to the Peoples Natural Gas Co. for a yearly royalty of $400. John then died without issue. His executor sold the 72 acres to Earnest Clyde Varner and the 50 acres to Karl M. Baily, who filed the Declaratory Judgment petition. The stipulation agreed on the facts as well as questions which the court was asked to decide. These, in the order they were discussed in the opinion and the disposition by the court below were as follows:
1. What estate did John acquire by the deeds from his sisters? To this question the court answered that the sisters had no vested interest but only a contingent interest conditioned on their surviving John's death without him leaving issue. Consequently, as to the sisters, Maria and Emma, who died before John, it was ruled no interest passed under their respective deeds to John and therefore the respective heirs of these two daughters became the owners of 2/3 of the 50 acres at John's death without issue. However, as to the 1/3 interest conveyed to John by Mary, who died after ...