King v. Ambrose , 232 Pa. 617 ( 1911 )

Opinion by

Mr. Justice Brown,

Counsel for appellants frankly admit that the failure to file in the court below the statement of errors required by equity rule 92 was due to their oversight, and, as the filing of such statement nunc pro tunc will impose no hardship on the appellees, the motion to so file it made May 8, 1911, is now allowed as of that date, and the motion to quash the appeal is dismissed. The failure to file the statement was not necessarily fatal to the appeal: Barlott v. Forney, 187 Pa. 301.

This bill was for the partition of lands belonging to the estate of Abraham Kerns, situated in Bedford and Somerset counties. He died many years ago, and at the time of his death his domicile was in Bedford county, where the larger part of his estate in value was situated. The bill was filed in the county of Somerset on May 9, 1907, under an averment in it that at that time the larger part of the estate of the deceased in value was situated in that county. This averment in the bill was specifically denied in the answer, and the defendants affirmatively averred that at that time by far the greater part of the estate, in quantity and value, was situated in Bedford county. This responsive answer to the jurisdictional averment in the bill was not overcome by the measure of proof required in equity practice, but the court below nevertheless found that of the lands of the decedent remaining unsold and described in the bill, the larger part, both in quantity and value, was situated in Somerset county.

The requirement of the Act of February 20, 1854, P. L. 89, relating to proceedings in partition, is that when such a proceeding is intended to embrace lands in more than one county, it shall be brought only in the county where the decedent whose land is to be divided had his domicile, or where the homestead or larger part of his estate in value shall be situated. Whether the court below would have had jurisdiction if, as a matter of fact, the larger part of the estate of the decedent in value was situated in Somerset county at the time the bill was filed, without regard to where the larger part of it in value was situated at the time of his death, is a question that we need not now determine, for the finding of the court below, that at the time the bill was filed the larger part of the lands, both in quantity and value, was situated in Somerset county was not only not supported by the necessary proof, but was clearly erroneous, in view of the documentary evidence in the case. To the report of the master making partition there is attached a draft, the accuracy of which was not questioned before us by the appellees. According to it only one tract — the John Check tract, containing acres — is situated wholly in Somerset county. Of the remaining nine, two, containing 800yi acres, are almost entirely in Somerset county. These three tracts were valued by the master at $6,700. Five of the tracts (including the Snake Spring Township tract, which is not on the draft), containing 1,801J^ acres, and valued by the master at $7,300, are situated in Bed-ford county. The remaining tract, known as the George Smith tract, and containing 433 acres, is located in both counties, about half of the tract being in each. Its total value as fixed by the master was $1,500. It thus appears that 2,018 acres, valued at $8,050, were situated in Bedford county at the time the bill was filed, and only 1,417 acres, valued at $7,450, in Somerset county. Neither at the time of the death of the decedent nor when the bill was filed was the larger part of his estate, in value, situated in Somerset county, and its court of common pleas had, therefore, no jurisdiction of the bill filed.

The first assignment of error is sustained, the decree is reversed and the bill dismissed at appellees’ cost.