John W. Bour, James K. Peck, Scranton, for appellants.
Walter L. Hill, Jr., O'Malley, Harris, Harris, & Warren, Scranton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 228]
This is an appeal from a decree of the Orphans' Court of Lackawanna County which, after hearing the case on the pleadings, dismissed a petition for an inquest in partition of certain real estate on the ground that the petitioners had no present interests therein as co-owners thereof.
The real estate in question was the only real estate owned by William P. Schick at the time of his death on November 15, 1940. He left surviving him six children, namely, the petitioners, the respondent Sophie Dippre, and Fred Schick. His will set forth: First, a direction to pay debts; second, a devise of his entire estate to trustees for designated purposes, to wit:
'(a). As to my real estate located at and known as Number 953 East Elm Street in the City of Scranton, Pennsylvania, I direct that, in case that my said son, Fred Schick, should marry and desire to establish a home for himself, the Trustees herein named shall make a deed to him for the said property. Until said property is conveyed, either to my son or to a purchaser thereof, I direct that my said trustees shall manage and control the said premises and to collect the rent therefrom and pay the cost of upkeep thereof, including taxes, water rents and insurance. In case that my said trustees should deem it desirable or advisable to sell the said premises, then and in that event I hereby authorize and direct my said trustees to make sale of the premises to any purchaser or purchasers thereof, and to that end and purpose I hereby vest in my said trustees full power and authority to make, execute and deliver a sufficient deed or deeds to the purchaser or purchasers thereof for said premises. In the event of the sale of said real estate, I direct that the proceeds of such sale shall be paid over unto my son, Fred Schick, his heirs and assigns. * * *
'(c). I direct that my trustees shall distribute unto
[ 169 Pa. Super. Page 229]
my five children, to wit, Lena Thomas, Emma Spathelf, William Schick, Charles Schick, and Sophie Dippre, in equal shares, their heirs and assigns forever, the moneys on deposit in my name in the New Citizens Building and Loan Association, of Scranton, Pennsylvania.
'(d). All the rest, residue and remainder of my estate I direct shall be distributed in equal shares to my six children, to them, their heirs and assigns.'
Fred Schick died testate, but unmarried, November 4, 1944. The real estate devised in trust was never sold or conveyed by the trustees. Respondent has been in exclusive possession since the death of her father, William P. Schick. No income, in ...