Appeal, No. 63, Jan. T., 1958, from decree of Orphans' Court of Lackawanna County, No. 47 of 1944, in re estate of Catherine Collins, deceased. Decree reversed.
John J. Scott, with him Daniel Jenkins, and Jenkins and Ligi, for appellants.
Ralph P. Needle, with him Needle, Needle & Needle, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Under the provisions of this will, did two of the three (named) surviving children or did only the (named) surviving child of testatrix take a fee simple interest in premises 1729 Wayne Avenue?
The Orphans' Court sur a petition for a declaratory judgment decided that title in fee simple vested in testatrix' son John collins after the death of his brother Joseph and his sister Florence.
Catherine Collins, the testatrix, died on December 19, 1943, at which time she owned premises 1729 Wayne Avenue, Scranton, Pa. She bequeathed $5 to her daughter Clare and $5 to her son Leo. She gave, bequeathed and devised all her residuary estate "to my sons John Collins and Joseph Collins, and my daughter Florence Transue, to share and share alike."
The paragraph which gives rise to the present suit is Item 2 of her will, which reads as follows:
"Item 2. I give, devise and bequeath to my sons John Collins and Joseph Collins, and my daughter Florence Transue, a parcel of land with all improvements, known as 1729 Wayne Avenue, in the City of Scranton and State aforesaid, during their life-time upon
the following conditions, viz: That they have the power to dispose or sell said real estate at any time during their natural life, if so agreed by all of them, and also to sign a deed and acknowledge same. Should either of my sons John Collins or Joseph Collins or my daughter Florence Transue who are mentioned above die, then the surviving one or ones is or are*fn* given, devised and bequeathed the said real estate forever. ...