Appeal, No. 129, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1945, No. 2275, in case of Walter P. Baldesberger v. Joseph M. Baldesberger et al. Judgment reversed; reargument refused June 28, 1954. Suit for declaratory judgment to determine title and right of possession to real estate. Before DREW, J. Verdict for plaintiff; judgment n.o.v. entered for defendants. Plaintiff appealed.
John E. Evans, Sr., with him H. Y. Crossland and Evans, Ivory & Evans, for appellant.
John A. Metz, Jr., with him John L. Garrow and Metz & Metz, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiff, Walter P. Baldesberger, claims that by virtue of the will of his deceased father he is the owner in fee simple of a certain portion of a farm property which is father had owned, but plaintiff's sister, Carrie Baldesberger, one of the defendants, claims that that will gave her a life estate in the property.
The father, Michael Baldesberger, died in 1915 leaving to survive him his widow and eleven children. By his will, written in 1909, he bequeathed and devised to his wife, for her life, all of his personal property and the use of all of his real estate. He owned a farm situate in Upper St. Clair Township, Allegheny County, containing 53 acres, 37 of which lay on the northwest side of a public highway and contained no buildings or improvements and the remaining 16 acres lay on the southeast side of the highway and contained the farmhouse, barn, and other outbuildings. He devised the 37 acre portion of the property, after the death of his wife, to all his children to be equally divided between them. There is no present controversy in regard to that devise.
Michael Baldesberger's will then proceed as follows: "FIFTH: At the death of my wife, I direct the residue of my farm, with the buildings thereon, together with all farm implements, stock, and furniture, lying southeast of said public road and containing sixteen acres, more or less, to be kept as a home for such of my children as may remain single, and upon the death of said children remaining unmarried, or upon the marriage of all of my said children for whom said house is kept, I devise and bequeath said portion of my farm to my youngest son, Walter Baldesberger, in fee simple, and in case of his death before the death or marriage of such of my children remaining single and for whom said home is provided, I devise said portion of my farm to the youngest of my children living
at the death or marriage of the surviving child for whom said home is provided in this my will."
Following his father's death the plaintiff, upon returning from Army service and at the request of his mother and brothers and sisters, operated the farm until the mother died in 1936. At that time, of the eleven children one had died and all the others had married except plaintiff and his sister Carrie; Walter married in 1939. Carrie, who is a school teacher, had left the family home on the farm in 1925 and had then purchased a lot in Carrick (now a part of the City of Pittsburgh) and built thereon a house for herself in which she has lived continuously to the present time. She registered there for the purpose of voting, voted in the elections held in that municipality and never in the township where the farm was located, and never went back to the farm except for occasional visits over week-ends and during vacation periods. Walter has continued to live upon and operate the farm.
The present declaratory judgment proceeding was instituted in 1944 to determine the respective rights of the plaintiff and his sisters and brother named as defendants.*fn1 We note that the pleadings of both parties were all filed by the beginning of the following year, but for some unexplained reason nothing further was done for a period of eight years when a praecipe was filed for a jury trial. The question submitted to the jury was whether Carrie Baldesberger had abandoned or forfeited her interest in the fifth paragraph of her father's will. The verdict of the jury was that she had abandoned her rights therein. The court, however, thereupon held that by that paragraph she was
devised a life estate which she could not loss by abandonment, and therefore the court entered judgment for defendants. Exceptions to this action of the court having been dismissed by the court en banc, plaintiff appeals.
Defendant's contention is that her father's will gave her an unconditional life estate, and, if that were so, plaintiff admits that such an estate could not be lost or forfeited by abandonment. It is plaintiff's position, however, that defendant obtained under the will merely an incorporeal right or privilege to use the property for her home, and, if that were so, defendant admits that such a right could be abandoned. The controlling question in the case, therefore, is the nature and extent of the interest which defendant acquired by the Fifth paragraph of her father's will.
It is our opinion that that interest was not a life estate but merely an incorporeal right or privilege. The testator's will is couched in technical legal language. It devised his real estate to his wife for life and devised the portion of the farm in question, after the death of his wife, to plaintiff in fee simple. As far as the other children were concerned, there is no such language employed, but merely a direction that that portion of his farm and the buildings thereon, with the farm implements, stock and furniture, was "to be kept as a home" for those children who might remain single and he speaks later of the children "for whom said home is provided." This is not the case, therefore, of a devise of an estate in property followed by an explanation of the testator's purpose in making the devise; obviously such an explanation would not ...