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LEISTER v. MILLER (03/22/54)

March 22, 1954

LEISTER, APPELLANT,
v.
MILLER



Appeal, No. 7, Jan. T., 1954, from decree of Court of Common Pleas of Chester County, in case of Irwin H. Leister et al. v. Bertha Miller and Charles Herwegh. Decree affirmed.

COUNSEL

Carolus A. Wade, with him Raymond B. Reid and William E. Parke, for appellants.

Robert S. Gawthrop, Jr., with him Gawthrop & Gawthrop and William C. Schwelbel, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 376 Pa. Page 453]

OPINION BY MR. JUSTICE ARNOLD

Plaintiffs appeal from a decree in equity denying their prayers for relief.

On March 29, 1950, plaintiffs recovered two judgments in trespass actions against Bertha Miller, the first of which was begun on April 7, 1948, and the second some months thereafter.

On April 13, 1948, approximately one week after the commencement of one of the trespass actions, the defendant, Miller, conveyed to the defendant, Herwegh, her son, a property the record title to which had been in her since 1942.

Approximately a month after plaintiffs recovered their judgments they filed a bill in equity alleging that no cash was paid to Bertha Miller by her son for the conveyance, and that it was made to prevent the application of the premises to the payment of ther debts. The bill prayed that the deed might be declared fraudulent, and that the premises be reconveyed to her.

[ 376 Pa. Page 454]

At the trial plaintiffs' only testimony was that of the defendants who were called as on cross-examination. They testified that Bertha Miller's mother died in 1920, leaving a will which provided, inter alia: "I... leave to each of my grandson... $5000 cash... I entrust her, [defendant, Miller]... to give the $5000 cash to each... when they are 21... 'Not to be put in bank or banks'"; that she paid the mother of each of two other grandsons when they became 21; that she retained her son's money although he became 21 in 1939; that in 1940 she invested part of it in a property which she sold a short time later; that the instant premises were purchased at her son's direction, but that she took title in her name because Herwegh was having marital difficulties; that the cash paid for the property came from the legacy; that Herwegh lived in the premises, repaired them, etc. until he was sent to prison in September, 1943; that the conveyance to Herwegh was made when he thought his wife's decree in divorce was final; and that the ownership was never intended to be in the defendant, Miller. None of this testimony was denied, contradicted or impeached.

The chancellor's findings of fact were that the cash paid for the premises was part of the son's legacy; that the conveyance to the son was because he wanted the premises "back in his name"; that there was "no evidence... upon which a finding of fraud in said conveyance could be predicated." The chancellor specifically stated that the findings ...


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