Swan's Estate

Citations

• 238 Pa. 430
• 86 A. 275
• 1913 Pa. LEXIS 988

Syllabus

<p>Wills — Construction—Real estate — Gift of residue of personalty — Power of sale — Intestacy.</p> <p>1. Where testator by will makes certain legacies and devises and gives his residuary personal estate “consisting of stocks, bonds, rents, uncollected balances on sales of real estate” to his five children, there is no residuary gift of real estate, notwithstanding various provisions in the will for selling certain portions of real estate and dividing the proceeds among the five living children. In such case the testator dies intestate as to that portion of his realty which had not been devised in other portions of his will.</p> <p>Real property — Partition—Nonjoinder of necessary parties— Petition to intervene — Vacation of decree.</p> <p>2. Where testator died intestate as to a portion of his realty, but partition proceedings were instituted for the division of it on the mistaken assumption that it belonged to his five children, as residuary devisees, and a decree was entered without making parties to the proceedings living grandchildren of the decedent, who as heirs were interested in the property, the court may vacate and set aside the decree notwithstanding the lapse of seventeen years. In such ease the next of kin will be given leave to institute new proceedings for partition and the original parties to the partition proceedings will be given leave to make application to the court for a readjustment of their purparts.</p> <p>Real property — Partition—Determination of title — Action at law — Jurisdiction-—Jurisdictional averments — Waiver.</p> <p>3. One who seeks to oust the jurisdiction of the court in a proceeding in partition on the ground of want of title or an adverse holding of the premises must distinctly plead it, otherwise he will be regarded as having waived his right to assert such a defense.</p> <p>4. Where an application is made for partition of real property, and the party in possession files an answer setting up that he holds the title adversely