Appeal, No. 292, Jan. T., 1954, from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1953, No. 1061, in case of William Cooper et al. v. Benny Milikovsky, also known as Benjamin Mills et al. Decree affirmed.
Lionel B. Gumnit, with him Marvin D. Weintraub, for appellants.
Isidore Baylson and Harry D. Gottlieb, with them Henry E. Skaroff, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
Decree affirmed on the opinion of Judge LEVINTHAL, at appellants' cost.
ING OPINION BY MR. JUSTICE BELL:
Testatrix died in 1932. She provided in her will:
"Third. Property 3008 N.7th Street, Philadelphia, I give and devise to my son Samuel Milikovsky and my daughter Reba Gold, with the furniture and fixtures therein, for life, to be used by them as a home and is not to be rented or sold. It is also understood that my husband Henry Milikovsky be allowed to occupy the property as long as he lives. Upon the death of both Samuel Milikovsky and Reba Gold the property is to be divided equally among all my grandchildren. At this time the property may be sold or disposed of as is seen fit.
"Fourth. Property 2915 N. Franklin Street, Philadelphia, I give and devise to my son Benny Milikovsky and my daughter Sophie Diamond, for life, to be used by them as a home and is not to be rented or sold. Upon the death of Benny Milikovsky and Sophie Diamond, the property is to be sold and divided equally among all my grandchildren."
Benny and Sophie abandoned said property in 1934 and contrary to their Mother's will, thereafter rented it.
Testatrix's grandchildren filed a petition for a declaratory judgment asking for an accounting of the rents from Benny and Sophie.
The lower court dismissed the petition holding (a) that the testamentary words "to be used by them as a home and is not to be rented or sold" were precatory and of no ...