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JENNE v. KENNEDY. (11/23/54)

November 23, 1954

JENNE, APPELLANT,
v.
KENNEDY.



Appeal, No. 228, March T., 1954, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2756, in case of Robina K. Jenne v. Jean Burns Kirk Kennedy. Decree affirmed; reargument refused December 13, 1954. Bill in equity for cancellation of deed. Before KENNEDY, J. Adjudication filed finding for defendant; exceptions to adjudication dismissed and final decree entered dismissing bill. Plaintiff appealed.

COUNSEL

Harry M. Jones, for appellant.

Clyde P. Bailey, with him Weller, Wicks & Wallace, for appellee.

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

Author: Stern

[ 379 Pa. Page 556]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The testimony in this case took an extremely wide range in depicting the lamentable dissensions existing between the two sisters who are plaintiff and defendant respectively. But when the underbrush is cleared away the only facts relevant to a decision are few and simple, and the applicable law is entirely clear and well established.

Plaintiff's bill of complaint alleged that on February 10, 1949, her mother, Mrs. Kirk, conveyed to defendant, plaintiff's sister, a two-story brick dwelling in the Borough of Edgeworth, Allegheny County, but that Mrs. Kirk had been induced to make the conveyance by fraud, the fraud consisting of the fact "that she was informed by the defendant and her husband that the conveyance was to be made solely for the purpose of effecting eviction of [the plaintiff]" from the premises in question. The bill further alleged that an agreement had been entered into between plaintiff and defendant that the property should be placed in the hands of a trustee and their mother removed to a nursing

[ 379 Pa. Page 557]

    home, and that representatives of the parties were trying to effect such an arrangement at the time of the conveyance. It was further stated that Mrs. Kirk was 85 years of age, "and in a very feeble mental condition," that defendant, together with her husband, was in a position of confidential relationship with her mother, that Mrs. Kirk died April 18, 1949, leaving a will dated October 7, 1943, in which she had left her residuary estate to her grandson, David Kirk Quinby, plaintiff's son by a former marriage, and that he had assigned to plaintiff all his right, title and interest under the will. The bill prayed that the conveyance of Mrs. Kirk to defendant be declared null and void "on the ground of fraud, undue influence and a confidential relationship between the parties."

As already indicated, it would serve no useful purpose to rehearse the testimony so replete with criminations and recriminations between the parties; suffice it to say that it does not support any of plaintiff's contentions upon which she relies for the success of her action. The learned chancellor made findings of fact, affirmed by the court en banc, that at the time Mrs. Kirk executed the deed to defendant "she was mentally competent to do so, and appreciated the import of her act, which was voluntary, at her direction, and not induced by fraud, deceit, or coercion, nor undue influence on the part of the defendant or anyone else;" that "it was the intent of the grantor to make a gift of her residence property to her daughter as a natural object of her limited bounty"; and that "no confidential relationship in business affairs existed between the grantor and the grantee." And the court concluded that "the Plaintiff did not prove that the Defendant took the Deed under an oral agreement or understanding, whereby the Defendant became constructive trustee for the benefit of the grantor,"

[ 379 Pa. Page 558]

    or that "an oral agreement had been entered into between her [the Plaintiff] and the Defendant with respect to placing the property in the hands of a trustee for the purpose of raising funds to place their mother ... in a nursing home." Accordingly ...


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