Keene's Appeal

1. A person who has a mere possible interest so contingent and uncertain that it never may happen, is not such an one as under the Act of March 29tb 1832 (Orphans’ Court) may compel an appearance in the Orphans’ Court. 2. A bare possibility under a will dependent upon the death of a first taker without issue, is not such an interest as will authorize a citation to the executor to account. 3. The interest for such purpose must be such as will certainly fall into possession some time. 4. An heir cannot in the ancestor’s life maintain a bill of discovery of facts or deeds necessary to the title of the estate. 5. A bill to perpetuate testimony will not lie by a remainder-man against a tenant in tail.

Appeal from the decree of the Orphans’ Court of Philadelphia : No. 264, to January Term 1869, in the estate of Sarah L. Keene, deceased. On the 29th of June 1867, Lawrence St. Clair Keene and Edward J. Keene petitioned the Orphans’ Court for a citation to Ellen K. Mitchell, &c., executrix, &c., of Sarah L. Keene, deceased, requiring her to settle an account of her administration. The answer averred that the petitioners had no interest under the will of the testatrix. After the filing of the answer the following facts were agreed on by the parties as if proven before an examiner:— Sarah Lukens Keene, lately of the city of Philadelphia, died j May 11th 1866, having made her last will and testament, dated November 18th 1843, which was duly proved June 9th 1866, when letters testamentary thereon were duly granted to.Ellen Keene Mitchell, surviving executrix named in said will, a copy whereof was annexed. Her brother, James Bryden Keene, named in said will, died November 17th 1864, intestate, leaving surviving him his widow, Phoebe, and six children, viz.: Lawrence St. Clair, Robert, James, Sarah, Austin and Ellen Keene, of whom Ellen died unmarried, intestate, September 10th 1867, and the rest are living. Lenox Keene, named in said will, brother of said executrix, died November 25th 1862, intestate, leaving surviving him his widow, Susan, and now living and married to John L. Hammond, May 1st 1860, and four children, two of whom died in infancy, and the remaining two now living are Jesse L. Keene and Edwin J. Keene. Ellen Keene, named in said will, was married to Samuel B. W. Mitchell, now living, after the date of the will and before the testatrix’s death, and has no children, child or issue; and Henry Edgar Keene, named in said will, is married, and has no children, child or issue. The portions of the will of Miss Keene important to this controversy are the following: — ■ “ Nor is the standing or any of the furniture of the said three-story brick house” (previously devised) “to go with it; but I devise it all and entirely, with my silver plate and my wearing apparel, and my jewelry (except such articles as I shall hereafter name), with all my books and musical instruments, everything in the house, to my beloved niece, Ellen Keene. I also bequeath to this dear niece (the only surviving daughter of my brother, Jesse Lukens Keene, deceased), whom I have educated, the sum of $30,000, to be invested in ground-rents, or bonds and mortgages on real estate, the interest to be paid to her only, or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely; but if she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of $30,000 in ground-rents and bonds and mortgage, the interest only for their uses; but to their children, lawful issue, absolutely. But if she marries without my consent, or after my death, to any person whom I did not approve during my life, then this devise shall be null and void, and she shall only receive $10,000, subject to the same investment of ground-rents or bond and mortgage, the interest only to be paid to her alone, or her power of attorney, and after her death to her children absolutely. I have made this clause, not from any fear of its prolalle necessity, but from prudence and precaution. If she dies without lawful issue, this sum to go to her brothers in the same manner as specified above in the larger sum. I desire also that for two years after my demise, my dear niece, Ellen Keene, shall inhabit the house now mine, at the north-west corner of Tenth and Chestnut streets; the bequest of it not to take place until that period; and it is my earnest solicitation that my dear friend, Sarah Pogson Smith, shall, during that period, inhabit it with her; and if afterwards my dear Ellen Keene does not marry, that she and Mrs. Pogson Smith may live together, the latter transferring to my beloved niece the friendship and interest she has always shown to me, becoming also a maternal guardian of her welfare and happiness, her virtues and her religious principles; and may God bless my prayers and my endeavors for the happiness in this world, and in the world to come, of her who has been for these ten years past the object of my affections and of my most anxious solicitude and tender regard. And I do hope this arrangement will be acceptable to both my dear niece and my dear friend, Sarah Pogson Smith. “I give and bequeath to my nephew, Henry Edgar Keene, $10,000, to be invested in ground-rents, or bonds and mortgages on real estate, the interest only to be paid to him during his natural life; if he marries and- has children, to his lawful issue absolutely; but if he dies unmarried, this sum to be divided between his two, or one surviving brother and his sister, subject to the same investment, and receiving the interest only of the same, during their lifetime. * * * * * * * “ It is my will that my executors shall have power to sell the large lot situated on Chestnut street, bounded by the aforesaid three-story brick house on the Chestnut street front, and on the east by Tenth street, and the small lot on'which the brick house stands, back or north by an alley, and to the west by the house of Mrs. Norris; or any part of my real estate not already devised, to pay my legacies; but not until two years have elapsed from the time of my death, unless the property shall have attained its full and just value, and the stocks in which much of my personal estate is vested, have attained also par value. “ My debts will be very few. “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of $80,000, specified in a former part of this instrument, the principal to be invested in ground-rents or in the bank stock considered safe, but preferable in bond and mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue, absolutely; if she dies unmarried, she has power to devise it to whichever of her brothers she tvill consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”