Appeal, No. 132, Oct. T., 1952, from decree of Court of Common Pleas of Clearfield county, Nov. T., 1950, No. 2, in case of Octa O. Tonkin et al. v. A. Worth Tonkin et ux. Decree affirmed.
Joseph J. Lee, with him Frank G. Smith, Robert V. Maine, Frank A. Whitsett and Smith, Maine, Whitsett & Lee, for appellants.
W. Albert Ramsey, for appellees.
Before Rhodes, P.j., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, J.j.
[ 172 Pa. Super. Page 554]
In this equity proceeding, plaintiffs seek to have a deed naming Sarah G. Tonkin, one of the defendants, as sole grantee and conveying to her a certain tract of land in Clearfield County, declared void for alteration and fraud, and a decree directing defendants to execute a reconveyance allotting plaintiffs the one-half interest which they claim. The prayer also is for the encumbrance or conveyance to third persons, for payment to plaintiffs of their share of the land already transferred, and for an accounting. The case was heard by the president judge of the Court of Common Pleas of Clearfield County, sitting as chancellor, who made a decree substantially in accord with the prayer of the bill, and after defendants' exceptions were dismissed, they took this appeal.
Defendants are husband and wife. Plaintiffs are the widow and son of defendant husband's brother,
[ 172 Pa. Super. Page 555]
The facts, for the most part, are undisputed. Vincent Tonkin, father of V. Ord Tonkin and defendant A. Worth Tonkin, died testate on November 22, 1908, seized of vast acreages of land and various parcels of real estate situated in Clearfield and Indiana counties. The tract, was made up of two separate but adjoining tracts with a total area of 632 acres. From this acreage four smaller pieces of surface and coal were sold in prior years, totaling about 175 acres, leaving approximately 457 acres in fee plus all minerals under the 632-acre tract, except the coal under the 175 acres. Testator named a third son, R. Dudley Tonkin, as one of three executors and he has for a period of years served as the sole surviving executor.
In January 1943 the heirs of Vincent Tonkin met for the purpose of dividing the undisposed portions of realty belonging to the estate. R.D. Tonkin, the executor, testified that the total valuation allotted to each heir was $3,700, and that the tract here in question was selected by A. Worth Tonkin and V. Ord Tonkin, along with other tracts individually, to be theirs, each to take a one-half interest. Their original plan was to have the land surveyed to determine the location of a dividing line but, because of the expense entailed, the plan to survey was dispensed with and the brothers decided in lieu thereof to take a joint deed. Worth directed the executor that his interest in the estate be charged $1,700 against his interest and that the deed be made to his son Robert, one of plaintiffs. The executor then had a deed prepared, dated January 12, 1943, which he signed, in which V. Ord Tonkin and Sarah G. Tonkin were named
[ 172 Pa. Super. Page 556]
grantees of the Skunk Bottom tract. On February 24, 1943, he enclosed the deed with deeds intended for other heirs with a letter to his sister, Mrs. Vivian Longrace, requesting her to deliver the ...