Fahey Estate

Supreme Court of Pennsylvania

Fahey Estate

52 A.2d 580, 356 Pa. 535, 1947 Pa. LEXIS 372

Supreme Court of Pennsylvania·Decided March 27, 1947·No. Appeal, 73·Published·Cited by 14 cases

Opinion

Opinion by

Mr. Justice Allen M. Stearne,

We are required to dismiss this petition for a declaratory judgment under the Uniform Declaratory Judgments Act of June 18,1923, P. L. 840, as amended by the Act of May 22, 1935, P. L. 228, 12 PS 831 et seq., as amended by the Act of May 26, 1943, P. L. 645. Such remedy is not an optional substitute for a statutory one specifically provided: Gerety Estate, 349 Pa. 417, 37 A. 2d 792; Keefer Estate, 351 Pa. 343, 41 A. 2d 666, and the cases therein cited.

What the parties seek in this proceeding is to have a legal determination of the extent of the interests of each of the parties in a partition suit already pending in the court below. The Orphans’ Court Partition Act of June 7, 1917, P. L. 337, 20 PS 1181, as amended, provides a complete and adequate remedy. Partition proceedings are commenced by a petition. Under the Orphans’ Court Buies promulgated by this court on December 30, 1942, reported in 345 Pa. lxxvi, it is provided by section 11, rule 8 (c), that petitions for partition shall set forth “the names, addresses and relationship of those interested in the land to be' partitioned, the extent of the interest of each of such persons, and, if such interest is created by a recorded deed or will, a *537 reference to such, record” (emphasis supplied). See Becker Estate, 352 Pa. 452, 454, 43 A. 2d 4.

If a determination of the extent of the interests of tlie persons interested in the partition proceedings becomes necessary, an answer can be filed and their interests determined by the court.

The interests of the parties in this proceeding depend on the will of John H. Fahey, deceased, which this partition proceeding presents to the Court for construction. There is no necessity for suspending the partition proceeding which is specifically provided for by a statute and the Orphans’ Court Eules, and resorting to procedure under the Uniform Declaratory Judgments Acts.

The decree is reversed and the petition dismissed. Costs to be paid out of the estate.

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Opinion by

Mr. Justice Allen M. Stearne,

We are required to dismiss this petition for a declaratory judgment under the Uniform Declaratory Judgments Act of June 18,1923, P. L. 840, as amended by the Act of May 22, 1935, P. L. 228, 12 PS 831 et seq., as amended by the Act of May 26, 1943, P. L. 645. Such remedy is not an optional substitute for a statutory one specifically provided: Gerety Estate, 349 Pa. 417, 37 A. 2d 792; Keefer Estate, 351 Pa. 343, 41 A. 2d 666, and the cases therein cited.

What the parties seek in this proceeding is to have a legal determination of the extent of the interests of each of the parties in a partition suit already pending in the court below. The Orphans’ Court Partition Act of June 7, 1917, P. L. 337, 20 PS 1181, as amended, provides a complete and adequate remedy. Partition proceedings are commenced by a petition. Under the Orphans’ Court Buies promulgated by this court on December 30, 1942, reported in 345 Pa. lxxvi, it is provided by section 11, rule 8 (c), that petitions for partition shall set forth “the names, addresses and relationship of those interested in the land to be' partitioned, the extent of the interest of each of such persons, and, if such interest is created by a recorded deed or will, a *537 reference to such, record” (emphasis supplied). See Becker Estate, 352 Pa. 452, 454, 43 A. 2d 4.

If a determination of the extent of the interests of tlie persons interested in the partition proceedings becomes necessary, an answer can be filed and their interests determined by the court.

The interests of the parties in this proceeding depend on the will of John H. Fahey, deceased, which this partition proceeding presents to the Court for construction. There is no necessity for suspending the partition proceeding which is specifically provided for by a statute and the Orphans’ Court Eules, and resorting to procedure under the Uniform Declaratory Judgments Acts.

The decree is reversed and the petition dismissed. Costs to be paid out of the estate.

Fahey Estate, 52 A.2d 580, 356 Pa. 535, 1947 Pa. LEXIS 372 (Pa. 1947).

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