Ashford v. Ewing

25 Pa. 213 | Pa. | 1855

The opinion of the Court was delivered by

Lewis, C. J.

This is an action brought by a child who was born about si? months after the death of Samuel Ewing, to recover a distributive share of the estate of the decedent. The administrators had settled an account which was confirmed on the 3d of June, 1834, exhibiting a balance of $468.94 in favour of the estate. There was no decree of distribution in the. Orphans’ Court. The Court of Common Pleas decided that since the Acts of 1832, ’33, ’34, and ’36, taken collectively, exclusive jurisdiction to enforce distribution belongs to the Orphans’ Court, and that the plaintiff cannot recover in this action at common law.

It would be a waste of time to attempt to explain or reconcile the decisions on cases supposed to be governed by the law as it existed before the Act of 1882. That Act not only gives jurisdiction to the Orphans’ Court, in cases of this kind, but prescribes the manner in which that jurisdiction shall be exercised. The Act of 5th March, 1806, requires that the statutory remedy shall be strictly pursued,, and prohibits a resort to the provisions of the common law, further than shall be necessary for carrying the remedy provided by statute into effect. It is therefore plain that if we pay any attention to the positive enactments of the legislature, the present action cannot be sustained. After the statute gave a remedy for a ward against his guardian, by the settlement of his accounts in the Orphans’ Court, it was held that the action at common law was taken away: Bowman v. Herrs’s Executors, 1 Pa. Rep. 282. After the Act of 1834 gave a remedy in the Orphans’ Court for the collection of legacies charged on real estate, it was determined that the statutory remedy must be pursued: Downer v. Downer, 9 Watts 60; Craven v. Bleakney, 9 Id. 19; Striekler v. Sheaffer, 5 Barr 240; Mohler’s Appeal, 8 Id. 26. On the same principle it has been decided that a widow cannot maintain an action of dower, where her husband died seised and in possession, so as to oust the Orphans’ Court jurisdiction, which jurisdiction was declared to be exclusive: Thomas v. Simpson, 3 Barr 60. Nor can- the heirs maintain ejectment against the-widow. Their remedy is exclusively in the Orphans’ Court: Seider v. Seider, 5 Whar. 208. Nor can a vendee resort to the common law action of ejectment to enforce specific execution of a parol contract for the' sale of land by a deceased vendor. His remedy is confined to that given by statute in the Orphans’ Court: Myers v. Black, 5 Harris 193.

It was expressly decided in Kittera’s Estate, 5 Harris 422, that the Orphans’ Court is by statute clothed with authority to distribute the estates of decedents in the hands of executors or administrators, “ among the persons entitled to the same;” and that by these general terms, as well as by express words, the legislature embraces creditors as well as hems, next of kin, and legatees : 5 Harris 422-3. The same principle had previously been announced in Barklay’s Estate, 10 Barr 387. In Whiteside v. Whiteside, 8 Harris 474, it was declared that “if there is anything besides death which is not to be doubted, it is that the Orphans’ Court alone has authority to ascertain the amount of a decedent’s property, and order its distribution among those entitled to it.” In Shallenberger’s Appeal, it was distinctly affirmed that the'Orphans’ Court, within its appointed orbit, is a Court of exclusive jurisdiction: 9 Harris 341.

The inconveniences and expenses arising from an action at common law by each person entitled to a distributive share, were so great as to induce the legislature to prescribe a remedy in the Orphans’ Court, where the whole estate can be distributed in one proceeding, and by a single decree. In the present case, where the sum is only $468.94, to put each of the distributees to the expense of a separate action to enforce distribution, would be to expend the fund in the effort to secure it. If the Acts of Assembly, the decisions since their enactment, or the1 convenience of the parties and the Courts, are to be regarded, this judgment must be affirmed.

Our attention has been particularly called to the cases of Richardson v. Richardson, 9 Barr 428, and Geddis v. Irvine, 5 Id. 508, as standing in opposition to this view of the question of jurisdiction. In the case last named, the demand was not against the executors as such, nor for assets of the decedent at all. In the case first named, the decedent settled his account in 1818, long before the jurisdiction was established on the footing of the Act of 1832. In neither of the cases did the parties make the point which has been considered in the present adjudication.

It is time that this question should be considered settled.

Judgment affirmed.