119 Pa. 645 | Pa. | 1888
Opinion,
Under the will of Joseph Brotzman, the provisions in favor of his daughter, Catherine Brotzman, are charged upon his real estate. Similar charges have been so held: Gibson’s Appeal, 25 Pa. 191; Buchanan v. Duncan, 40 Pa. 82; Steele’s Appeal, 47 Pa. 437.
By the 59th section of the act of 24th February, 1834, P. L. 84, it is provided that “ when a legacy is or hereafter may be charged upon or payable out of real estate, it shall be lawful for the legatee to apply, by bill or petition, to the Orphans’ Court having jurisdiction of the account of the executor of the will by which such legacy was bequeathed, whereupon such court, having caused due notice to be given to such executor, and to the devisee or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate, as justice may require, may proceed, according to equity, to make such decree or order touching the payment of the legacy out of such real estate as may be requisite and just.”
In Pierce v. Livingston, 80 Pa. 99, it was said by Shaes
This is a narrow view of the act of 1806. Of what possible use is a bill in equity where an act of assembly has given a convenient and adequate remedy ? The very corner-stone of equity jurisdiction is that a wrong exists for which no adequate remedy has been provided, and which the law fails to correct by reason of its universality. Our books are full of cases in which it has been held that where a remedy has been provided by act of assembly, equity has no jurisdiction. Thus it has been held that a bill in equity will not lie against an incorporated company where the act incorporating such company gives a remedy by a proceeding for the assessment of damages, and that such remedy must be pursued: Stump’s Appeal, 38 Leg. Int. 205. "VVe have innumerable decisions to the effect that in all such cases the remedy must be pursued. So, indeed, we have an act of assembly to that effect, the act of 1806: Spangler’s Appeal, 64 Pa. 387. Other illustrations might be given and other authorities might be cited, were it necessary to show that under the act of 1806 a remedy given by an act of assembly must be “ strictly pursued.”
Prior to the act of 1834 the remedy universally adopted in
Pierce v. Livingston and numerous other cases have decided as plainly as language can make it, that under the act of 1834 the jurisdiction of the Orphans’ Court is exclusive in the case of a legacy charged upon real estate. And we are of opinion that it excludes the equity as well as the common law jurisdiction of the Common Pleas.
Upon the merits we are all with the learned auditor, and are of opinion the plaintiff is entitled to the sum awarded her, but as she is in the wrong court, we cannot help her in this proceeding. The court reversed the auditor, and dismissed the bill. We are constrained in view of what has been said to affirm the decree, but it is without prejudice to her right to proceed under the act of 1834 in the Orphans’ Court.
The decree is affirmed, and the appeal dismissed at the costs of the appellant.