*

filed in the office of the register of wills on March 22, 1918. Upon notice given to Sarah A. Frisbie, executrix, by Sarah A. Frisbie, widow, which notice contains inter alia: "This request and election to take the said sum of five thousand dollars is made by virtue of the devise and bequest given unto me in the third paragraph of the decedent's will * ," and requested that a certain piece or parcel of land be appraised and set apart to her, and should the real estate, subject to a mortgage, prove of insufficient value, then that there be further set apart to her, a part or sum of a certain mortgage, held by her as the executrix of the testator's estate. An appraisement made by B. T. Jayne and William R. Bright was filed and confirmed nisi on June 1, 1919; and the matter comes before us on exceptions to the final confirmation of the appraisement.

Treating the exceptions filed as a demurrer, the question involved is whether Sarah A. Frisbie, the widow, is one "of such persons as shall be entitled to receive" the residue and remainder of the testator's estate "under the intestate laws of Pennsylvania."

In this case, the widow has accepted the provisions made for her in the will, and now claims an interest in the estate under the Act of April 1, 1909, P. L. 87.

The plain meaning of the words of the testator, taken in connection with the preceding parts of the will seems to be this: Having made a satisfactory provision for his wife, he left the residue to his heirs, to be disposed of under the intestate laws. Such a construction satisfies the will, without any laboured endeavor to find reason for the widow to participate in the residue, in addition to his bequests to her. On the whole, we are clearly of the opinion that it was not the intention of the testator that his widow should be entitled to any of the residuary

estate.

The widow's claim for a share in the residue is inconsistent with the express words of the will and incompatible with the plain intention thereof.

The bequest to "such persons as shall be entitled to receive" the residue and remainder of the estate "under the intestate laws of Pennsylvania," does not include the widow: Storer v. Wheatley's Executors, 1 Pa. 506; Ivins's Appeal, 106 Pa. 176.

And now, June 25, 1919, final confirmation of the appraisement is refused.

GUTH v. BUTTERWECK.

Real Estate Agreement of Sale-Tenants in CommonAdverse Possession-Will.

A suit was brought to enforce payment of the purchase money under an Agreement of Sale. The property contracted to be sold was devised to one for life and on his dying without issue then "one-half to the heirs and next of kin on my side, and the other to the heirs and next of kin on the side of my deceased wife."

Held that there could be no recovery when it appeared that the life tenant died without issue under a contract made only by the heirs of the devisor.

There can be no adverse possession as against tenants-in-common. The title to real estate cannot be perfected on a suit brought to enforce the payment of purchase money on an agreement of sale, nor can such suit be treated in the nature of a bill for specific performance when not executed.

A chancellor will not compel a purchaser to take a doubtful title.

In the Court of Common Pleas of Lehigh County. No. 120, January Term, 1918. Charles F. Guth, Minnie Guth, Nan C. Ewing and Boyd R. Ewing v. Harry A. Butterweck. Assumpsit to recover balance of purchase money on contract of sale of real estate. Jury trial waived. Judgment in favor of defendant for amount paid on account of contract and counsel fees.

Butz & Rupp for Plaintiffs.

James L. Schaadt, Dewalt & Heydt, and Charles W. Webb for Defendant.

Groman, P. J., July 7, 1919.

FINDINGS OF FACT.

1. On the tenth day of April, 1917, the plaintiffs entered into an agreement of sale with the defendant, for the premises in the agreement described, consisting of two lots knows as Nos. 34 and 36 North Ninth Street, Allentown, Pennsylvania.

2. At the time of the execution of the agreement the sum of Five Hundred ($500.00) Dollars was paid on account of the consideration.

3. On July tenth, 1917, one of the plaintiffs tendered a deed to the defendant, executed and acknowledged by the plaintiffs.

4. The defendant refused to accept the deed.

5. On April 22, 1918, plaintiffs and defendant entered into an agreement filed in this proceeding, whereby it was agreed the trial of this case be continued, and that defendant pay the additional sum of Five Hundred ($500.00) Dollars on account of said agreement of sale which was to be consummated July first, 1918, with a further proviso that the agreement otherwise remain in full force and effect.

6. The premises referred to were encumbered by a mortgage for Twenty-seven Hundred ($2700.00) Dollars, the satisfaction of which was provided for in the agreement.

7. Jacob Bitz, deceased, was vested with a fee simple title to the premises sold and intended to be conveyed.

8. Jacob Bitz died testate; his last will and codicil thereto were probated by the Register of Wills of Lehigh County on May 11, 1866.

9. Jacob Bitz left surviving him two grand-children mentioned in the will-Mary Ann Kramer and Henry Guth, to whom the real estate was devised.

10. Katharin, the wife of Jacob Bitz, deceased, preceded him in death. The record herein fails to show, before suit was brought, that the wife of Jacob Bitz did or did not leave lineal or collateral heirs.

11. Mary Ann Kramer died April 2, 1913, leaving no issue surviving her.

12. Henry Guth died on February 4, 1896, leaving to survive him three children: Nan C. Ewing, now intermarried with Boyd R. Ewing; Charles F. Guth, now intermarried with Minnie K. Guth; and George H. Guth, now intermarried with Elizabeth Lawall.

13. Henry Guth, the father of George H. Guth, Charles F. Guth and Nan C. Ewing, occupied No. 36 North Ninth Street, Allentown, Pa., one of the lots involved in this suit, from 1888 to the date of his death; his widow and Charles F. Guth occupied the premises continuously until 1917.

14. The taxes on No. 36 North Ninth street were paid by Henry Guth during his life-time, and after his death by Charles F. Guth.

15. The title to No. 36 North Ninth Street, Allentown, Pa., is a good and marketable title.

16. Mary Ann Kramer collected the rents for No. 34 North Ninth street, and paid the taxes during her lifetime, and after her death the rents were collected and taxes paid by plaintiff.

17. Since the death of Mary Ann Kramer, April 2nd, 1913, plaintiffs had possession of the said premises. George H. Guth and his wife, by deed dated February 17, 1915, conveyed the undivided one-third right, title and interest to said premises to plaintiffs.

18. The title to No. 34 North Ninth Street, Allentown, Pa., was a doubtful title when the deed for the same was tendered.

CONCLUSION OF LAW.

This suit was brought to recover the balance of the purchase money claimed to be due on a contract for the sale of real estate; a deed was tendered by the plaintiffs, and demand made upon defendant for the fulfillment of the terms of the contract. Defendant, although ready to do so, refused to accept the title on the ground that it was defective.

Plaintiffs claim title to the real estate under the will of Jacob Bitz, deceased, probated by the Register of Wills of Lehigh County, on the eleventh day of May, 1866. It is admitted the title to the real estate described in the contract is good, exclusive of that part referred to in the will of Jacob Bitz, deceased, as follows: "I give and devise unto my granddaughter, Mary Ann intermarried with Tilghman Kramer the house and lot where I formerly resided situate on Ninth street in the said Borough of Allentown together with the rents, issues and profits thereof during her natural life and after her death to her surviving children forever * and in case one

or both of my grandchildren shall die without lawful issue then and in that or either case the said house and lot or houses and lots shall be given and devised as follows to wit one half to the heirs and next of kin on my side, and the other half to the heirs and next of kin on

the side of my deceased wife agreeably to the intestate laws of the Commonwealth of Pennsylvania."

Mary Ann Kramer died on or about the second day of April, 1913, leaving to survive her as her only heirs the parties to this suit, and George H. Guth who by deed bearing date the seventeenth day of February, 1915, conveyed his interest in said real estate to plaintiffs. It is admitted parties plaintiff, under the will of Jacob Bitz, deceased, as his "heirs and next of kin on my side" took title to the half interest in said real estate, and that the "other half to the heirs and next of kin" vested in the "heirs and next of kin on the side of my deceased wife agreeably to the intestate laws." From the record herein, we are unable to find who the heirs of the wife of Jacob Bitz were, though the will of Jacob Bitz did indicate such heirs. It is admitted the provision in the will relative to notice in one or more newspapers printed in Lehigh County, providing if any of the heirs fail to make claim for the "legacy" within sixteen months after such notice be given, such heir "shall be (forever) debarred of receiving any part thereof," was not complied with.

Counsel for plaintiffs argued that plaintiffs acquired title by adverse possession as against all claimants under the will of Jacob Bitz, deceased, even though co-tenants, such possession through themselves and their predecessors in title having been actual, continuous and hostile for fifty years and upwards. But can one co-tenant acquire title by adverse possession as against other co-tenants? The acts of a co-tenant are presumed to be for the benefit of the common right: Keller v. Auble, 58 Pa. St., Page 410; and the taking of possession by one heir is for the benefit of all co-heirs: Miller's Appeal, 3 Gr. 247; Tullock v. Worrall, 49 Pa. St., Page 140. The possession of one co-tenant as a general rule, is the possession of all: Hayes' Appeal, 123 Pa. St., Page 110, unless by actual ouster, by plain, decisive and hostile acts against a cotenant continued for twenty-one years adversely and in hostility to the common right; under such circumstances, the co-tenant may be barred: Brown v. McCoy, 2 W. & S., 307 note; Frederick v. Gray, 10 S. & R. 182; Mehaffy v. Dobbs, 9 Watts, 363; Law v. Patterson, 1 W. & S., 184; Forward v. Deets, 32 Pa. St., Page 69; but what constitutes such hostile acts depends on the circumstances of