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FREDERICK S. TRUXAL v. DONALD E. TRUXAL (07/10/84)

submitted: July 10, 1984.

FREDERICK S. TRUXAL, AND EDNA B. TRUXAL, HIS WIFE, APPELLANTS AT NO. 938 PITTSBURGH, 1982,
v.
DONALD E. TRUXAL, ALIAS DICTUS, D. EUGENE TRUXAL, AND NANCY TRUXAL, HIS WIFE, ROBERT R. TRUXAL, AND MARTHA LOU CROTHERS, ALL OF THE HEIRS OF J.R. TRUXAL, DECEASED. APPEAL OF DONALD E. TRUXAL, ALIAS DICTUS, D. EUGENE TRUXAL AND NANCY TRUXAL, HIS WIFE, AT NO. 971 PITTSBURGH, 1982



No. 00938 Pittsburgh, 1982, No. 00971 Pittsburgh, 1982, APPEAL FROM THE JUDGMENT ENTERED AUGUST 17, 1982, AND FROM THE ORDER OF JULY 26, 1982, IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, CIVIL at No. 2517 of 1979

COUNSEL

John W. Pollins, III, Greensburg, for Frederick Truxal, et al., appellants (at No. 938) and appellees (at No. 971).

Donald J. Snyder, Jr., Greensburg, for Donald Truxal, et al., appellants (at No. 971) and appellees (at No. 938).

Rowley, Hester and Roberts, JJ.

Author: Roberts

[ 333 Pa. Super. Page 536]

These are cross-appeals taken from a judgment entered in a three-count action to quiet title. We affirm the judgment in favor of plaintiffs on Count I and affirm the judgment in favor of defendants on Counts II and III.

Count I

The parcel of land at issue in Count I is located in Unity Township, Westmoreland County, as are the parcels at issue in Counts II and III. Its former owner, J.R. Truxal, died in 1934, leaving a will which provided:

"I give and bequeath to my sons, Frederick S. Truxal, Robert R. Truxal, and A.N. Truxal, or their heirs, at the death of my beloved wife, the tract of land . . . on condition that Robert R. Truxal pay to Frederick S. Truxal,

[ 333 Pa. Super. Page 537]

    the sum of $300.00 within two years from the date of death of my beloved wife."

J.R. Truxal's wife died in 1938, and Robert Truxal did not pay plaintiff Frederick Truxal in accordance with the "condition" set forth above. Plaintiffs, in Count I of their Complaint, claimed that payment by Robert Truxal was a condition precedent to his entitlement to a share of the property. The Court of Common Pleas of Westmoreland County agreed, and held that "[u]pon the failure of the condition precedent, the undivided one third interest of Robert R. Truxal was equally divided between [plaintiff] Frederick S. Truxal and A.N. Truxal."*fn*

Defendants, who are the heirs of Robert R. Truxal, maintain that Robert R. Truxal had an interest in the property which vested automatically upon the death of J.R. Truxal, and that it was thus plaintiffs' burden to commence an action to divest Robert R. Truxal of his interest for his failure to make the payment of $300. According to defendants, plaintiffs should have commenced such an action within either twenty years (see 20 Pa.C.S. § 3554) or twenty-one years (see 42 Pa.C.S. § 5530) after the expiration of the period prescribed for payment in J.R. Truxal's will. The period for payment expired in 1940, two years after the death of J.R. Truxal's wife, who died in 1938. ...


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