Appeal, No. 40, Jan. T., 1954, from decree of Orphans' Court of Montgomery County, No. 53629, in Estate of I. Newton Yarnall. Decree affirmed.
Mabel B. Ditter, with her J. William Ditter, Jr. and Ditter & Ditter for appellant.
D. Stewart McElhone, with him Edward B. Duffy and Duffy, McTighe & McElhone, for appellee.
Before, Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
In this orphans' court partition proceeding the question presented by the appeal is whether or not appellant has sufficiently proved a valid parol gift of a life estate in the real estate which ousts the jurisdiction of that court until the alleged disputed title is determined in an ejectment proceeding in the court of common pleas. The court below decided that appellant's testimony failed to establish the existence of such a dispute of title which would warrant the submission of the case to a jury in an ejectment proceeding and directed the inquest in partition to be made. The appeal followed.
I. Newton Yarnall died April 13, 1928, intestate, leaving to survive him a widow, Lillie I. Yarnall (appellant), and two children, Ethel Y. McMullin and I. Newton Yarnall, Jr. (appellees), his sole heirs and next of kin. At the time of his death decedent was seized of premises 1722 Bethlehem Pike, Flourtown, which was
the only real estate owned by him. Under the Intestate Act of June 7, 1917, P.L. 429, 20 PS 1.1 et seq., the widow and each child inherited an equal one third interest in his real and personal estate. At the time of the death of intestate the widow resided in the premises and still resides therein. Appellees, the two children of intestate, petitioned the orphans' court for partition of the real estate. Appellant, the widow, by her answer to the petition, contests the petition and claims: "... a life estate in the whole of said land by oral gift of [appellees], or, in the alternative, by an adverse possession continued for more than twenty-one years." The answer further alleges: "The present interest of each of [appellees] in said real estate is no more than a one-third remainder after the death of [appellant]." (Italics supplied)
A hearing was had upon petition and answer. Appellees and appellant testified. A niece of appellant also testified, in corroboration of appellant, concerning admissions alleged to have been made by appellees.
The alleged parol gift by appellees to appellant, according to appellant's testimony, was made: "... either... in [the lawyer's] office the day of the final settlement, [of the personal estate] or, at my home before the final settlement." The only persons present at the conversation were the appellees and the appellant. The alleged conversation, according to appellant, was: "A. My daughter said: 'We will give you your life right here, as long as you live, free of charge. And, we will also pay one-third of the taxes to help you.' One third of the taxes, I would say, in the neighborhood of up to four or five years... Q. Did your son say anything? A. Yes, he said he was perfectly satisfied for me to have my life right ...