Appeal, No. 49, Jan. T., 1952, from decree of Court of Common Pleas of Montgomery County, Nov. T., 1947, in Equity, No. 17, in case of A.M. Fry v. G. Henry Stetson et ux. and Fidelity-Philadelphia Trust Co., Trustee under Will of John B. Stetson, deceased. Decree affirmed.
Cassin W. Craig, with him Morris Gerber and Wisler, Pearlstine, Talone & Gerber, for appellant.
Raymond A. White, Jr. and Thomas Stokes, with them Russell J. Brownback, Joseph S. Conwell, Jr., Robert B. Brunner, Brunner & Conver and Pepper Bodine, Stokes & Hamilton, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff, a judgment creditor of John B. Stetson, Jr., filed a Bill in Equity in 1948 for a partition of premises known as Pleasant Valley. She prayed not for a partition of future interests, but for an immediate partition of her debtor's presently existing interest in the premises. The basis of her claim is that G. Henry Stetson was devised only a personal license to use and occupy Pleasant Valley; that he abandoned this license, and consequently Pleasant Valley became a part of testator's residuary trust estate, of which John B. Stetson, Jr. owned an undivided one-half interest, and that he and hence she was entitled to immediate possession, and therefore immediate partition thereof. We disagree with her contentions.
Testator in Item 3 of his will provided: "I direct the trustees hereinafter named to keep in good order and repair the properties known as the Cox property and Pleasant Valley, and in case my son, JOHN B. STETSON, JR., should care to use and occupy said Cox property in case of his marriage, he may do so at his pleasure, free of rent, taxes and all ordinary and necessary repairs. And my son, G. HENRY STETSON, shall have the like privilege as to Pleasant Valley, House, Barn the Stable, with about five acres of land, in case of his marriage, free also of rent, taxes and repairs. My trustees to always keep said properties in good condition at the expense of my residuary estate."
The authorities in this and in other states are not in accord as to whether the words "use and occupy" have a fixed meaning or create a personal license or a life estate.*fn* Their meaning must depend on the language employed in each case. For reasons hereinafter appearing it is unnecessary to decide what Henry's exact interest in Pleasant Valley was at his father's death or in 1928.
In March, 1928, John B. Stetson, Jr., G. Henry Stetson and the widow of John B. Stetson, Countess Eulalia, executed a written agreement which specifically stated that "G. Henry Stetson no longer proposes to make use of the said Pleasant Valley as his home and has so notified the Trustees"; that Pleasant Valley was an asset of the residuary estate and that the wife and children of G. Henry Stetson could use and occupy Pleasant Valley, rent free, until the death of any of them. Upon Countess Eulalia's death, this family agreement construing testator's will was followed by another family agreement dated January 2, 1930, and executed by John B. Stetson, Jr., and G. Henry Stetson, who were at that time the only beneficiaries under the residuary clause of their father's will. This agreement ratified the first agreement with the modification that the agreement and hence the occupancy of Pleasant Valley was to terminate upon the death of either John or G. Henry Stetson. Pursuant to and ever since these agreements, Henry Stetson's first wife and children have continuously occupied Pleasant Valley.
So far as all the beneficiaries of this estate (including John B. Stetson, Jr., and ...