Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, No. 44412, in re Estate of Cyrus H. K. Curtis.
Morris H. Goldman, with him Morris Wolf, Samuel H. High, Jr., Robert McL. Boote, Wolf, Block, Schorr and Solis-Cohen, and High, Swartz, Roberts and Seidel, for appellant.
Richard P. Brown, Jr., with him Gregory M. Harvey, W. Wesley Nagle, Frances Woerner, and Morgan Lewis & Bockius, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones joins in this dissenting opinion.
This appeal is from the final decree of the Orphans' Court Division of the Court of Common Pleas of Montgomery County, which declared that the title to "Curtis Arboretum", a public park in Cheltenham Township,
was not the property of the Township, but that of appellees.*fn1 The facts surrounding this appeal are as follows: Cyrus H. K. Curtis died on June 7, 1933. Included in his estate were some 165 acres of real estate, situate in Montgomery County. This real estate was devised by Article Ninth of the testator's will, which reads in part:
"Ninth. I give, devise and bequeath to my daughter, Mary Louise Curtis Bok, for her lifetime, my residence known as Lyndon, and all other real estate belonging to me, situate in Montgomery County, Pennsylvania . . . together with all the buildings thereon erected and all the household furniture and effects contained therein. . . .
"My said daughter shall have full power by will or other testamentary instrument to dispose of any or all of said property, but failing such disposition, upon her death, I give the same in equal shares to such of my grandchildren as shall be living at the death of my said daughter, and to the issue then living of any deceased grandchildren, such issue to take per stirpes the share which their parent would have been entitled to receive if living.
"My said daughter shall have full power to sell any or all of said property, real or personal, and to execute and deliver good and sufficient deeds or other instruments of conveyance or sale, without any obligation upon the part of the purchaser to see to or be responsible for the application of the proceeds. The proceeds of such sale shall stand in place of the property sold and shall be turned over to my daughter, without security."
In 1936, Mrs. Bok negotiated with the solicitor for the Board of Commissioners of Cheltenham Township for the establishment of a public park in memory of Cyrus H. K. Curtis. On March 11, 1937, Mrs. Bok, by conveyances, transferred approximately forty-three acres to the township. The conveyances numbered eight, but were identical in every material aspect except the legal descriptions of the ...