Ford's Estate , 232 Pa. 179 ( 1911 )

Per Curiam,

Upon the death of Jacob Kimmell his farm in Derry township, Westmoreland county, passed to his two children, Edmund B. Kimmell and Mary E. Ford, subject to the dower interest of Barbara E. Kimmell, his widow. By the deed of October 30,1895, from the son and widow, Albert Ford acquired title to an undivided half interest in the farm, and that he fully understood he was acquiring no more clearly appears from the letter addressed to him by Messrs. Marchand, Gaither & Woods, in which they explained to him that the deed as prepared by them, and subsequently executed by the said grantors, would not pass title to his wife’s interest in the land. Nearly eight years later he recognized her as the owner of the half interest by joining with her in asking for the appointment of viewers to assess damages they had sustained by the construction of a railroad over their property, and he received the amount awarded by the viewers in a report in which they found that he and his wife were the joint owners of the land. In addition to the amount awarded by the viewers he received the proceeds of sales of the property, and an unchallenged finding of fact by the auditor is that the appellee did not intend that he should hold these moneys as a gift from her. She was, therefore, clearly entitled to recover from his estate one-half of what he had received as the proceeds of the sale of the farm, and the first and second assignments are overruled. The third, complaining of the failure of the auditor to surcharge the appellee with the sum of $1,016.12, is also dismissed. He was appointed to pass upon nine exceptions to her administration account, but by no one of them was he asked to surcharge her with that sum, alleged to have been paid to her by Silas Jenkins.

The assignments of error are overruled, and the decree is affirmed at appellant’s costs.