Appeal from decree of Court of Common Pleas of Lackawanna County, Jan. T., 1964, No. 3, in case of Betty Wilson Truver v. Charlotte R. Kennedy.
Paul A. Barrett, with him Russell J. O'Malley, and Nogi, O'Malley & Harris, for appellant.
Harry E. Smith, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice O'Brien join in this dissenting opinion.
On February 2, 1928, Lizzie M. Wilson died, intestate, survived by her husband, three sons and two daughters. Upon her death, title to a property, -- consisting of 192 acres of land and situated in Roaring Brook Township, Lackawanna County, -- became vested by operation of law in her husband and five children, the former receiving a one-third interest and the latter each a two-fifteenths interest. In 1940, the husband's one-third interest in the property was conveyed to Esther W. Kennedy, one of the two Wilson daughters, who thus became the owner of a seven-fifteenths interest in the property.
In the meantime, taxes on this property not having been paid since 1930, the property was sold at a tax sale to Lackawanna County (County); nevertheless, the five Wilson children retained a right of redemption of the property. By deed recorded on April 18, 1941, the three Wilson sons and one Wilson daughter, Betty W. Truver, conveyed their respective interests in the property to Esther Kennedy. Thereafter, Mrs. Kennedy exercised the right of redemption and, by the payment of $900 in settlement of delinquent taxes owing on the property for the years 1930-1944, inclusive, she
secured a conveyance of the property from the County in her own name. In 1951, Mrs. Kennedy, by two separate deeds, sold to third persons approximately six acres of the property.
On December 13, 1955, Mrs. Kennedy, without consideration, conveyed the remaining portion of the property to her daughter, Charlotte Kennedy, and herself and, on March 29, 1957, the same property was conveyed, without consideration, to Charlotte Kennedy. Although since 1957 several portions of the property have been sold, a considerable portion of the property is still owned by Charlotte Kennedy.
On December 30, 1963, Betty W. Truver instituted an equity action in the Court of Common Pleas of Lackawanna County against Charlotte Kennedy seeking: (a) to restrain her from conveying or encumbering that portion of the property which remains unsold; (b) an accounting of all income which has been realized from the property and all moneys received from the sales of the several portions of the property since she acquired title; (c) a court direction that, after such accounting, she pay over to Mrs. Truver such amount of money as may be found to be due to her. While the equity complaint does not specifically so state, Mrs. Truver seeks to have a trust imposed upon the property to the extent of her claimed two-fifteenths interest therein. Upon issue joined between the parties, the matter was tried before Judge Conaboy; after hearing, the court found that the evidence did not establish any trust, either express or by operation of law, and dismissed the complaint. That decree is the subject of the instant appeal.
Mrs. Truver claims that in April of 1941, after having received several letters from Mrs. Kennedy, she executed a quitclaim deed to Mrs. Kennedy of her interest in the property; that the execution of this deed was upon the express understanding that Mrs. Kennedy
would borrow certain money, would put the property in marketable condition, would, by the payment of the delinquent taxes, redeem the property, would then place the property on the market for sale, and, upon a sale of the property, would reimburse herself for the expenses she had incurred and then, from the balance remaining, pay to Mrs. Truver her pro-rata share of the proceeds of the sale; that the basic understanding was that Mrs. Truver's interest in the property would be preserved, in any event, despite her execution of the quitclaim deed.
The real crux of this litigation lies in the construction to be placed on certain letters of Mrs. Kennedy and her counsel, -- the authenticity of which letters has been established by the findings of the chancellor, -- which immediately preceded the execution of the quitclaim deed and, undoubtedly, motivated Mrs. Truver in the execution of the deed.
On March 29, 1941, Mrs. Kennedy wrote to Mrs. Truver, -- who was then living in Texas, -- stating that the property had been taken over by the County, that, if "one of us" did not do something, the chance to save the property would be gone, that she and her husband had ascertained that a building and loan association would "advance the money for taxes if one of us has it [the property] in our name," that her father had already executed a deed to her and that the three brothers were willing to do so and she then requested that Mrs. Truver execute a deed conveying her interest in the property. In that letter, Mrs. Kennedy added: ". . . Then I can borrow the money . . . and hold the place for a better sale. If at any time you want to pay your share of the taxes [giving the amount of taxes due] you can do so and get anything out of it there is to get. I am taking the responsibility of paying back the loan company so you certainly won't be out anything and otherwise the place will be lost anyway."
Almost two weeks later -- April 10, 1941, -- after a conference between the Kennedys and their counsel, Mrs. Kennedy and her counsel each wrote a letter to Mrs. Truver from whom the quitclaim deed still had not been received. In Mrs. Kennedy's letter, she stated that the letter was "written to protect [Mrs. Truver] in the matter. All of the others have signed the deed." Mrs. Kennedy then continued: "Your interest in the property . . . will be preserved upon your giving a deed for same. In other words, you are entitled to two-fifteenths of whatever the property sells for over all ordinary expenses of the sale" and then she reiterated that the taxes had to be paid and the property redeemed if anybody was to receive anything. In his letter to Mrs. Truver, Mrs. Kennedy's counsel advised her to go along with Mrs. Kennedy's proposition for her own best interest, adding: "They [the Kennedys] are willing that on paying the taxes each one will retain his share of the property" and " They [the Kennedys] are willing to give you a guarantee that you will own two-fifteenths (2/15) in the property." (Emphasis supplied).
Shortly after the receipt of these three letters, Mrs. Truver executed the deed conveying to Mrs. Kennedy her ...