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SMIGELL v. BROD (03/19/51)

March 19, 1951

SMIGELL, APPELLANT,
v.
BROD



Appeals, Nos. 254 and 271, Jan. T., 1950, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1948, No. 304, in case of Bertha Smigell et al. v. Pauline Brod. Order reversed; reargument refused April 11, 1951.

COUNSEL

David S. Malis, with him Robert H. Malis and Malis, Malis & Malis, for plaintiffs.

William N. Nitzberg, for defendant.

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

Author: Stearne

[ 366 Pa. Page 612]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

[ 366 Pa. Page 613]

The two appeals are from orders in an ejectment suit following a jury's verdict for the defendant. One appeal is by plaintiffs because of the court's refusal to enter judgment n.o.v. for plaintiffs. The other is by defendant from the grant of a new trial.

Plaintiffs seek possession of real estate under a deed through their deceased father. Defendant who is is possession interposes a defense as equitable owner of a one-third interest, this being claimed as her intestate share as surviving spouse. The basis for defendant's claim is that her husband, prior to their engagement to marry, and without her knowledge, conveyed the premises in question to a trustee for himself for life, with remainder to plaintiffs, children by his first marriage. Defendant maintains that the conveyance constituted a fraud upon her marital rights and, therefore, she retained and never was divested of such equitable interest.

Louis Brod, a widower, aged 63, married defendant, a widow, aged 61, on September 2, 1938.They became engaged on August 14, 1938. Prior to the engagement Louis Brod owned 6017 Christian Street, Philadelphia. On July 30, 1938, two weeks prior to the engagement, for a named nominal consideration, Louis Brod conveyed the premises to a trustee for himself for life and thereafter to his two daughters in fee. He died April 2, 1948. The trustee, in accordance with the terms of the trust, upon grantor's death, deeded the premises to plaintiffs. While Louis Brod died testate, his residuary estate, including the premises here involved, passed in accordance with the intestate law, viz.: to defendant, as widow, one-third, and to each of the plaintiffs, as children, one-third.

Defendant did not claim that her husband told her what real estate he owned. She testified, "I don't remember asking him. All I knew that he owned the

[ 366 Pa. Page 614]

    property, that's all." However, two of defendant's children and a grandson testified that Louis Brod solicited their co-operation in securing defendant's consent to marrying him; that he had stated to the children and grandson that he owned the real estate; he had a good job; he would take good care of defendant and "that she will always have a third share in my ...


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