Appeals, Nos. 180, 181, 198 and 199, March T., 1953, from decree of Court of Common Pleas of Washington County, in Equity, No. 4868, in case of Nellie Barnhart et al. v. Fannie Barnhart et al. Appeals, Nos. 198 and 199, dismissed; Appeals, Nos. 180 and 181, sustained; record remitted.
H. Russell Stahlman, with him Victor E. Riva, for plaintiffs.
Stephen D. Marriner, with him Rufus S. Marriner and Marriner, Wiley & Marriner, for defendants, appellants.
Ralph W. Peacock, for defendants, appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The two questions presented by these appeals in a partition proceeding are (1) whether or not papers executed by an heir constitute a conveyance of his interest in named real estate and (2) whether or not a husband of an heir has released his interest in his deceased wife's estate. The court below decided that the heir had conveyed his interest in the real estate, but that the husband of the deceased wife had not released his interest in her estate. The appeals followed.
Robert L. Barnhart died intestate May 20, 1924, seized of real estate in Charleroi, Washington County, described in the complaint, which for the present purposes may be termed the "theater" property on McKean Avenue and the "Fourth Street" real estate.
(The questioned conveyance relates solely to the theater property while the possible interest of the spouse of the deceased heir concerns both pieces of real estate). Surviving intestate was his widow, Fannie Barnhart, three children, Harry L. Barnhart (whose conveyance is in issue), Fannie G. Keaser and Lillian B. Horne (who later intermarried with Eldred B. Orndorff, whose release is in issue) and a granddaughter, Nellie Teegardner, child of a predeceased daughter, Nellie Barnhart Lindauer.
Harry L. Barnhart died intestate January 14, 1943, survived by his widow, Nellie Barnhart, and one child, Harry F. Barnhart.
Lillian B. Orndorff died intestate February 1, 1949, leaving to survive her a husband, Eldred B. Orndorff, and Dorothy Mae Mollenauer, a child by a previous marriage.
The findings of fact of the court below established that by a writing dated June 2, 1930, Harry L. Barnhart executed and delivered a paper titled "agreement" reading: "To the Members of the Palace Theater -- This is to certify that on and after June 14, 1930 I will no longer remain a member of said firm. In consideration of $20,000.00 cash payment I surrender all right, title and interest in the above mentioned theater".
There is a finding of fact that Harry L. Barnhart received $20,000, the consideration money therein mentioned.
On June 16, 1930, Harry L. Barnhart executed and delivered another paper titled "agreement" providing: "In consideration of the sum of $1.00, I hereby dispose of my interest in the Palace Theater property to the following Robert L. Barnhart Heirs; Mrs. Fannie ...