Appeal, No. 55, March T., 1956, from decree of Orphans' Court of Allegheny County, 1953, No. 3809, in re Estate of Tillie Weiskircher, Dec'd. Decree affirmed as modified.
C. Francis Fisher, with him Brenlove, Fisher, Stein & Winters, for appellant.
Herbert M. Lurie, with him Robert T. Stokes, Jr., Chauncey E. Brockway, Stokes & Lurie and Brockway, Brockway & Acker, for appellee.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Testatrix directed her executors to fulfill the agreement she had made in her lifetime with her step-daughter, Stella, concerning the interest in the real estate at 401 Fifth Avenue, McKeesport, Pa., which was held by them in common. Testatrix further provided that, subject to the provisions of the eighth paragraph of her will, her executors should sell and dispose of all of her real estate, and then directed that her residuary
estate, including the proceeds of the sale of her real estate, should be divided by her executors into nine equal shares and "disposed of" to her named nieces and nephews and the named children of a deceased niece.
The residuary legatees elected to take the Fifth Avenue real estate in kind, and the Court sustained their right.
It is a well settled general principle of law that "when the proceeds of real estate are devised, the persons beneficially interested may elect to take the fund as real estate. The devisee may take it either as land or money.": Harrar's Estate, 244 Pa. 542, 549, 550, 91 A. 503.
The eighth paragraph of testatrix's will provided as follows: "Eighth: I direct my executors hereinafter named to fulfill and agreement which I may have with may stepdaughter, Stella*fn* K. Schroeder, concerning my interest in the real estate now held by us in common, and devised to us under the Last Will and Testament of Jacob Weiskircher, deceased; and until such time as my interest therein may be disposed of or sold, I direct my executors to manage, lease and let the same, collect the rents and income therefrom, and use the net income towards payment of the legacies mentioned in the third and seventh paragraphs hereof, if no other funds are available for their payment, and after payment of the same, divide the remaining income among my residuary legatees herein named.
"It is my wish and I so direct that should my stepdaughter, Stella K. Schroeder, survive me, she shall have the first offer to purchase my interest or share in said real estate, either before or after the term mentioned in said agreement, if agreeable to ...