Appeal, No. 98, March T., 1954, from decree of Orphans' Court of Allegheny County, March T., 1954, No. 98, in Estate of Joseph Michalak, deceased. Decree affirmed. Proceeding upon petition of wife and minor child and heirs of decedent for partition of real estate and an accounting. Before RAHAUSER, J. Adjudication filed finding for petitioners and granting an inquest in partition; exceptions to adjudication dismissed and final decree entered. Respondent appealed.
William J, Krzton, with him Esler W. Hays, for appellant.
William F. Donatelli, with him Wayne Donahue, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This is an appeal from a decree of partition awarded by the Orphans' Court of Allegheny County in an exercise of its jurisdiction under the Act of June 7, 1917, P.L. 337, 20 PS § 1181. The petitioners, Kreszentia (also known as Zenta) Michalak and her daughter, Josephine Michalak, a minor (acting by her guardian),
are the heirs at law of Joseph G. Michalak who died intestate on December 5, 1950. The respondent and present appellant is Joseph's mother, Josephine Michalak, a widow.
The real estate involved consists of forty acres of farm land in Allegheny County improved with two small dwellings. The legal title to the property is in Joseph G. Michalak (now deceased) and his mother by virtue of a general warranty deed dated February 21, 1949, from the mother to Joseph and herself. The deed is of record in the Recorder's office of Allegheny County. It recited a consideration of $1.00 and bore 55 worth of documentary stamps marked "Cancelled". The dwellings were occupied by tenants from whom the mother collected rents from the date of her son's death. She also paid taxes on the property. In addition to the partition awarded, the respondent was directed to account for the rents received by her following her son's death subject to whatever credits she was entitled to on account of the taxes paid by her.
It is the appellant's contention that Joseph was a constructive trustee for her use of an undivided one-half interest in the deeded property. In support of this contention, Mrs. Michalak alleges that Joseph stood in a confidential relation to her and that he abused the confidence by obtaining from her without consideration the deed for the farm to himself and her as tenants in common.
If the appellant's claim to her deceased son's record title raised substantial issues of fact, a partition proceeding would not, of course, be an appropriate action for the resolution of such issues. As Mr. Justice STEARNE recently stated in Yarnall Estate, 376 Pa 582, 587, 103 A.2d 753, -- "It is a well established principle that a ...