Brotzman v. Riehl

119 Pa. 645 | Pa. | 1888

Opinion,

Mr. Justice Paxson:

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"WOOD, J., in commenting upon this section: “ It is very well settled that the jurisdiction of the Orphans’ Court under this section of the act is exclusive.” This was the very point decided in the case, and the opinion is fortified by the citation of numerous authorities which fully sustain it. The 59th section of the act of 1834 gives a complete remedy in the Orphans’ Court, and was evidently intended to exclude every other remedy and jurisdiction. That this is so as to common law remedies is admitted. Such result necessarily follows from the act of March 21, 1806, 4 Sm. L. 332, which provides that “ in all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of said act shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” The learned judge below, however, held that this did not interfere with the jurisdiction of equity, and that a bill may still, be filed in the Common Pleas to enforce the payment of a legacy charged upon land.

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 this state to recover a legacy charged upon real estate was a common law action. The books are full of such cases, and the practice continued long after the act of 1834 was passed. As was remarked by Justice Coulter in Strickler v. Sheaffer, 5 Pa. 240: “ Such is the tenacity, however, of customs and forms, in their hold upon the mind, that the old practice still lingered and lingers in some parts of the state.” These cases were invariably reversed when they reached this court. Some little of this tenacity for old forms and customs must still exist, if we may judge from the frequency with which uncertain remedies are resorted to where a certain, convenient, and adequate one is given by an act of assembly. The filing of this bill, however, cannot be said to be a result of clinging to old forms, as I have no knowledge of such a bill having been filed in this state before; certainly none such has been called to our attention. The learned master below, in his labored argument to sustain the jurisdiction of the equity side of the Common Pleas, cites no such case. He places his opinion mainly upon the ground that this is a testamentary trust. The will undoubtedly creates a charge upon the land. A ground-rent and a mortgage are respectively a charge upon real estate. Whether the will of the testator creates a testamentary trust is a subject foreign to this inquiry. The jurisdiction of the Common Pleas cannot be sustained upon this ground.

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.