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July 13, 1954



Raymond J. Porreca, Raymond A. White, Jr., Philadelphia, for appellants.

Michael H. Egnal, Philadelphia, Wisler, Pearstine, Talone & Gerber, Norristown, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 176 Pa. Super. Page 172]

ERVIN, Justice.

This is an appeal by defendants from the entry of judgment on the pleadings in favor of the plaintiff in an action in ejectment to recover possession of an undivided five-eighteenths interest in premises known as Pleasant Valley and for mesne profits.

The facts disclosed by the pleadings reveal that under the will of John B. Stetson, who died in 1906, his son, G. Henry Stetson, was given a right or privilege to use and occupy a property known as Pleasant Valley, free of rent, taxes, and all ordinary and necessary repairs. Under the terms of the will testator's trustees were directed to keep the property in good repair at the expense of the residuary estate. Since 1928, G. Henry Stetson has not occupied the property but has permitted the premises to be used and occupied by appellants, Helen B. Stetson, his divorced wife, and Elizabeth Allen and Ann Norris, his daughters. In March, 1928 G. Henry Stetson, John B. Stetson, Jr., and Elizabeth, Countess of Eulalia, widow of John B. Stetson, who were at that time the beneficiaries of the residuary estate, entered into a family agreement whereby they released the trustees under the will of John B. Stetson from any liability for failure to treat the premises involved as part of the residuary estate of John B. Stetson and permitted the trustees to continue the maintenance of the property for the benefit of the appellants so long as the parties thereto remained alive. In January 1930, upon the death of John B. Stetson's widow, Elizabeth, Countess of Eulalia, the

[ 176 Pa. Super. Page 173]

    remaining beneficiaries, John B. Stetson, Jr. and G. Henry Stetson, reaffirmed the former agreement and provided inter alia 'that all the terms of the said agreement shall be continued until the death of either one of them, when it shall absolutely cease and determine.' On June 8, 1946, through execution on a judgment, appellee acquired the five-eighteenths interest of John B. Stetson, Jr., in Pleasant Valley, which interest had become vested in him by inheritance and conveyance. As of November Term, 1947, No. 17, the appellee here brought a bill in equity for the partition of Pleasant Valley in the Court of Common Pleas of Montgomery County, praying for an immediate partition of her debtor's then existing interest in the premises. That case was ultimately disposed of by the Supreme Court of Pennsylvania. Fry v. Stetson, 370, Pa. 132, 87 A.2d 305. The Court, speaking through Mr. Justice Bell, held that the partition action was premature as appellee's right to possession had not vested at that time because of appellants' prior right to possession of the premises under the terms of the written family agreement then in effect. After the death of John B. Stetson, Jr., on November 14, 1952, demand was made upon the appellants to execute a lease for five-eighteenths of the fair rental value of Pleasant Valley or to remove therefrom. Upon the refusal of appellants to do either, appellee filed her complaint in ejectment. The court below granted appellee's motion for judgment on the pleadings and directed that a judgment for possession be entered in favor of the appellee and against the appellants, and further provided that the amount of mesne profits due the appellee was to be determined at a trial.

Appellants' principal contention is that the testator in the instant case created a life estate in G. Henry Stetson and they hold under and subject to the rights

[ 176 Pa. Super. Page 174]

    of the life tenant; and therefore, the appellee, who has an undivided five-eighteenths interest, has said interest only as a remainderman and is not entitled to bring an action in ejectment against the appellants, during the lifetime of G. Henry Stetson. This contention is based on the conclusion that the use of the words 'use and occupy' contained in Item 3 of the testator's will created a life estate in G. Henry Stetson. Item 3 of testator's will provided: 'I direct the Trustees hereinafter named to keep in good order and repair the properties known as the Cox property and Pleasant Valley, and in case my Son, John B. Stetson, Jr., should care to use and occupy said Cox property in case of his marriage, he may do so at his pleasure, free of rent, taxes and all ordinary and necessary repairs. And my Son, G. Henry Stetson shall have the like privilege as to Pleasant Valley, House Barn and Stable, with about five acres of land, in case of his marriage, free also of rent, taxes and repairs. My Trustees to always keep the said properties in good condition at the expense of my residuary estate.'

Interpretation of this provision in testator's will was involved in the prior suit brought by the appellee for partition in equity noted supra, wherein it was contended 'that G. Henry Stetson was devised only a personal license to use and occupy Pleasant Valley; that he abandoned this license, and consequently Pleasant Valley became a part of ...

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