28 Pa. Super. 144 | Pa. Super. Ct. | 1905
Opinion by
Nathan T. Brittain, by his will, proved April 14, 1903, directed a sale, either public or private, of two parcels of land, and a division of the proceeds, after payment of his debts, among his brothers and sisters in equal shares. On July 1, 1903,
The principles by which the disposition of this case is to be governed are well established, and may be thus summarized:
1. The orphans’ court has plenary power in controlling the settlement and distribution of the estates of decedents testate or intestate, and in determining all questions arising therein: Kittera’s Estate, 17 Pa. 416; Dundas’s Appeal, 64 Pa. 325; Dundas’s Appeal, 73 Pa. 474; Otterson v. Gallagher, 88 Pa. 355; Johnson’s Appeal, 114 Pa. 132.
3. A sale under a testamentary power, while not primarily requiring confirmation by the orphans’ court, is subject in like manner to its supervision and control: Dundas’s Appeal, 64 Pa. 325.
4. No person acting in a fiduciary character can purchase at his own sale, directly or indirectly, or acquire by purchase any interest in the trust estate, without the consent of the beneficiary or others interested therein, or of the court having jurisdiction of the trust: Shuman’s Appeal, 27 Pa. 64; Hannum’s Appeal, 2 Penny. 103; or unless, if selling under a power, he is by its terms permitted to purchase: Springer’s Estate, 51 Pa. 342.
5. As a general rule, it is too late to make objections to a sale by order of the orphans’ court after confirmation, payment of purchase mone3r and delivery of deed: Simmonds’s Estate, 19 Pa. 439. Yet there are exceptions to this rule'; and the court may, when equity requires it, review its adjudication and revoke the confirmation: Johnson’s Appeal, 114 Pa. 132.
The contention by the appellant, that the petition to set aside the sale could not be entertained while exceptions to the account were pending, and that these exceptions could not be withdrawn after a hearing, cannot be sustained. It is true that, while one suit is pending, a second by the same plaintiff against the same defendant, for the same cause of action, and seeking the same remedy, cannot be pursued. But such is not the case here. The parties are not the same in both proceedings, and, while both rest on the same ground, different reme
The petitioner’s allegation that the land was really bought by the executor, through the nominal purchaser, is established by the evidence. Without referring to particulars, it is sufficient to say that the indicia of collusion are sufficiently marked to justify the conclusion on this point reached by the court below. Apart from this, the authorities cited show that even a bona fide sale may be set aside and a resale ordered, when this is manifestly to the interest of the estate. Here the advantage to the estate of a resale is obvious, and for this reason alone the decree in the premises may be sustained.
Decree affirmed.