HUFFMAN ESTATE (NO. 1), 349 Pa. 18 (1944)

36 A.2d 638

Supreme Court of Pennsylvania.January 3, 1944.
March 20, 1944.

Appeals — Review — Findings of fact — Conclusiveness.

1. Findings of fact by the court below, which are supported by the evidence, have the effect of a verdict of a jury and will not be disturbed on appeal. [20]

Partition — Use and occupation by one tenant — Distributive share — Deduction — Orphans’ Court Partition Act of 1917.

2. Under Section 20 of the Orphans’ Court Partition Act of June 7, 1917, P. L. 337, in case of partition of real estate a tenant in common who has been in possession of it shall have deducted from his distributive share of the real estate the proportional part of the rental value thereof to which his co-tenant, or co-tenants, are entitled, for the time such real estate shall have been in his possession. [19-20)

Real property — Co-tenants — Improvements — Reimbursement.

3. A claim for an improvement to property made by one in possession during the lifetime of the owner may not be asserted in partition proceedings after the owner’s death. [20-1]

4. A claim for the improvement of property which is being partitioned cannot be allowed in the partition proceedings in the absence of evidence that the improvement enhanced the value of the property. [21]

Argued January 3, 1944.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.

Appeal, No. 161, Jan. T., 1943, from decree of O. C., Monroe Co., File No. 4697, in the matter of partition proceedings in the Estate of Elizabeth Huffman. Judgment affirmed.

Partition proceeding in orphans’ court.

Report of auditor filed charging son of decedent for use and occupation of property. Exceptions by son to report dismissed and final decree entered, opinion by FARR, P. J., specially presiding. Exceptant appealed.

E. D. Preate, with him J. Julius Levy and William J. Maxey, for appellant.

David B. Skillman, with him Detleff A. Hansen, for appellee.

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OPINION BY MR. JUSTICE HUGHES, March 20, 1944:

Elizabeth Huffman died possessed of a resort hotel property. One of the heirs instituted partition proceedings. In marshalling the assets, it appearing that another of the heirs was in possession of the premises, that heir was asked to pay rent for use and occupation in accordance with the provisions of the Orphans Court Partition Act of 1917, P. L. 337, Sec. 20.[1] This is a reenactment of a part of the Act of June 24, 1895, P. L. 237, Sec. 1.[2]

The court found that in 1907 the parents of Norman Huffman were in financial trouble and Norman Huffman, his father and another brother made a contract of partnership for the operation of the several businesses formerly operated by the father. The father “gave up shortly” and the brother died in 1912. Thereafter Norman Huffman carried on the business and assumed the obligations. The hotel became the home of all the family

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whenever they chose to stay or return. They entertained their guests there. One brother lived there free of charge and one sister helped about the hotel until her death. Norman Huffman expended some $20,000 in repairs to the hotel. Since the death of Elizabeth Huffman, the mother, none of the family except the brother and sister before mentioned lived there or undertook to manage the business or assert ownership or possession. Norman Huffman carried on the same as before the mother’s death and there was no change in the attitude of the tenants in common toward him and the property. The court found the foregoing facts and then concluded: “We cannot infer from these facts, a family arrangement whereby there was to be no charge for use and occupation.” On the other hand, Norman Huffman admitted that he had operated the hotel prior to the time his mother died in 1937 and continued to operate it until its sale; that throughout all of that period he held himself out to be the owner and proprietor of the hotel, received the income from it, and paid the expenses of its operation. These findings of fact are fully supported by the evidence and have the effect of a verdict of a jury and will not be disturbed on appeal:Myers, Admx., et al. v. Marquette, 311 Pa. 198, 201, 166 A. 361; Phila. v. Phila. Sub. Water Co., 309 Pa. 130, 142, 163 A. 297. The auditor in accordance with the foregoing facts determined the amount due for use and occupation of the hotel by Norman Huffman, and having correctly made this determination and the court below having affirmed it, we shall not disturb it.

During the occupancy by Norman Huffman of the hotel he made improvements and installed a water supply system by which water was led from a source of supply on property belonging to Norman Huffman to the hotel. The auditor correctly held, that title to the property being in his mother prior to her death, any improvement made before the date of the death of his mother should have been filed as a claim against her

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estate within one year after the date of her death:Brennan’s Estate, 277 Pa. 509, 121 A. 321; Sec. 15 (a) of the Act of 1917, P. L. 447.

The only claim for improvement following the death of the mother was an addition to water storage sheds and tanks at a cost of $300.00. The auditor finds: “As there is no evidence as to what the ‘additions to water storage sheds and tanks’ consisted of; the extent to which this expenditure enhances the value of the property; that it was made for the preservation of the common property and not for the convenience of Norman Huffman himself, the auditor does not allow this set off.” Without evidence on which the auditor could make a finding that the value of the property was enhanced by this expenditure, it was properly disallowed.

Judgment affirmed.