Appeal, No. 22, March T., 1953, from decree of Court of Common Pleas of Allegheny County, April T., 1952, No. 1422, in case of Sophia Kikel v. Frank Kikel, Joseph Kikel et ux., Henry Kikel et ux., and John Kikel. Decree affirmed.
Edward J. McGinness, for appellant.
Calvin E. Pollins, with him Pollins & Pollins, C. Joseph Recht and Recht & Recht, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Plaintiff commenced the present proceeding by filing a bill in equity for partition of four parcels of real estate, alleging that under the will of their mother, Sophia Kikel, she and her four brothers (defendants) were tenants in common of those properties. Upon petition of Henry Kikel, one of the defendants and executor of the will of Sophia Kikel, the court below set aside the service and dismissed the bill.
Whether or not the bill was properly dismissed depends upon whether there was an equitable conversion of the real estate into personalty by the will of the decedent: Keim's Estate, 201 Pa. 609, 51 A. 337; Mahoney Estate, 356 Pa. 358, 52 A.2d 328.Relevant portions of the will read as follows:
"First: It is my Will that all my just debts and funeral expenses and the expenses of the settlement of my estate be paid or compromised from the assets of my estate by my executors hereinafter named as soon as it is convenient to do so.
Second: I give, devise and bequeath unto my son, Frank Kikel, $2300.00, and to my son Henry Kikel, $100.00, all the rest of my estate, real, personal or mixed whatsoever or wheresoever the same may be, I give, devise and bequeath unto my following children, Frank Kikel, my son, Joseph Kikel, my son, Henry Kikel, my son, John Kikel, my son, and Sophia Kikel, my daughter, share and share alike to be theirs absolutely, their heirs and assigns, forever.
"Third: I hereby nominate and appointe Henry Kikel, my son, to be the executor of this my last Will and Testament, to serve without bond. I hereby authorize and empower my executor herein named to make, execute and deliver a ...