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CLAAR v. BURKET. (11/18/57)

November 18, 1957

CLAAR, APPELLANT,
v.
BURKET.



Appeal, No. 194, Jan. T., 1957, from judgment of Court of Common Pleas of Blair County, Jan. T., 1952, No. 137, in case of Catherine F. Claar, administratrix, v. A. H. Burket, also known as A. Homer Burket. Judgment affirmed.

COUNSEL

Alexander A. Notopoulos, with him Amos Davis, for appellant.

Blair L. McKillip, Jr., with him Frank B. Warfel, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 390 Pa. Page 577]

OPINION BY MR. JUSTICE CHIDSEY

Catherine F. Claar as administratrix d.b.n.c.t.a. of the Estate of Abram M. Burket, deceased, brought an action in ejectment against A. Homer Burket for four lots of ground on which seven dwellings were erected. Trial of the case resulted in a jury verdict in plaintiff's favor, together with an award of mesne profits, in the amount of $5,548. The court below sustained the defendant's motion for judgment n.o.v. and entered judgment for the defendant from which plaintiff appeals.

Abram Burket died testate on August 1, 1923, a resident of Claysburg, Blair County, Pennsylvania, seised in fee of many parcels of real estate of which the land in question was a part. He was survived by his widow who died two or three years later, and by eight sons, one of whom is the defendant, A. Homer Burket.All of the sons survived the testator and it is not disputed that under the terms of testator's will they became entitled

[ 390 Pa. Page 578]

    in equal shares to the testator's residuary estate which included his real estate.

Three sons, Watson E., G. Ira and H. Claude, were appointed executors in the will and they were given power to sell real estate. Watson E. Burket died in 1928, G. Ira Burket died in 1940, and H. Claude Burket, the surviving executor, died November 19, 1951. Letters of administration d.b.n.c.t.a. were granted to the plaintiff, Catherine F. Claar, on December 10, 1951. She was the daughter of Charles Burket, one of the testator's sons, and the niece of the last surviving executor, H. Claude Burket. It does not appear that any of the testator's real estate was sold by the named executors, but in 1927 there was an amicable partition or division of some of it agreed upon. In accordance therewith conveyances to those entitled were in many instances belatedly made. Plaintiff testified that some of those entitled had not received their shares of the real estate so partitioned and divided at the time of her appointment as administratrix in 1951, and that in some instances a son had died and his share of the real estate in this partial distribution was conveyed to his widow or children.

The plaintiff established that the property in dispute was acquired by the testator during his lifetime and claimed that he died seised thereof so that it was the property of the estate. On the other hand defendant claimed that he received the property in dispute as his share under the family agreement of partition or division of part of the real estate, by deed duly executed and acknowledged by H. Claude Burket, surviving executor, on January 14, 1941. This deed was introduced into evidence together with another deed of the same property dated ...


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