Shenk v. Shenk

24 A. 680, 150 Pa. 521, 1892 Pa. LEXIS 1358

• Court: Supreme Court of Pennsylvania
• Decided: July 13, 1892
• Docket: Appeal, No. 45
• Status: Published

Opinion

Per Curiam,

The learned court below entered judgment for the defendant non obstante veredicto upon the reserved point. As he did not file an opinion, we have no means of knowing, the reasons for this ruling. The defence was that the will of Benjamin Shenk did not create a charge upon the land of the defendant; and, further, that, if it did create such charge, the said charge was barred by the statute of limitations. The plaintiff’s claim is certainly a stale one. The testator died December 9, 1864. The defendant, who was his grandson, and living with him, took immediate possession of the place devised to him, and has held it ever since. The widow died April 1, 1868. So that one part of the claim has been due about twenty-eight years, the balance of it about twenty-two years. The estate of Benjamin Shenk had been settled more than twenty-one years previous to the commencement of this suit. These facts justify us in saying that it is a stale claim. We need not concern ourselves about the statute of limitations, however, as we do not think the will of Benjamin Shenk creates a charge upon the land in question. Such charges can only arise from the express language of the will, or by necessary implication. Considering the will as a whole, we are not able to say that the testator intended to charge this sum of $2,000 upon the real estate devised to his grandson Samuel Shenk. It was a mere valuation or appraisement of the land.

Judgment affirmed.