12 Pa. 333 | Pa. | 1849
Feb. 11.
The testamentary trust in this case is given in the will to the executors nominatim, and in conjunction with another individual not an executor. It is therefore not a trust confided to executors virtute officii; and presents a fair and full occasion to test the jurisdiction of the Orphans’ Court over testamentary trusts given nominatim. There had been a settlement of the account of the trustees of the real estate before the register of Monroe county, by Michael Brown, testamentary trustee, in 1840; the trustees having conveyed the trust estate before that time, in pursuance of and according to the terms of the trust. Various accounts before this time had been settled in the Orphans’ Court of Northampton county, by the trustees, in pursuance of a citation at the instance of a cestui que trust. After the county of Monroe was stricken off from Northampton county (in which county, of Monroe the trustees, cestui que trust, and the estate were all included), the proceedings appealed from were had in the Orphans’ Court of Monroe county. After a long course of proceeding without objection as to jurisdiction, that question was started by the counsel for the cestuis que trust, and the Orphans’ Court decided that they had no jurisdiction. From that decree the surviving trustee appeals. If the decree of the Court below should be sustained, a long course of proceedings in the Orphans’ Court, not only in Monroe county, but also in Northampton county, commencing in 1831, will be subverted, and the accounts of trustees after the death of some of them, will be thrown open to fresh litigation.
The Act of 29th March, 1832, § 4, confers large powers on the Orphans’ Court. Among other things, it is provided in that section
The case of Badger v. Wheatly, 7 Barr, 459, is the first in which it was distinctly asserted, that the Orphans’ Court had not jurisdiction over a testamentary trust, when it was given to the executor nominatim and not virtute officii. But it is to be observed that the
This case is approved in Johnston’s Appeal, 9 Barr, 417. But there the proceedings were originally in the Common Pleas, and this decision does not unsettle that case. We feel ourselves constrained, upon deliberate and mature reflection, to overrule the case of Wheatly v. Badger, in 7 Barr, so far as it decides that the Orphans’ Court had not jurisdiction. It is not always that the Court, in construing new Acts of Assembly, strike the true mark at first. The difference between a trust given nominatim and ratione officii to executors, is a nice and subtle one, and hardly, ever apparent to common scriveners, or to men who make their own wills ino]os concilii. It is for the interest of society that there should be one tribunal to which parties can resort-without being perplexed with such abstruse distinctions. And such, we think, upon deliberate review, was the intent of the legislature. The Common Pleas and the Orphans’ Court have concurrent jurisdiction in case of testamentary trusts, except in those cases where, by the proviso to the 15th section of the Act concerning assignees, passed 14th June, 1836, the jurisdiction is saved exclusively to the Orphans- Court. Ever since the Act of 1832, of the 29th March, testamentary trustees have gone into the Orphans’ Court, where decrees have been made and money distributed, and now, after some of the trustees are dead, as in this case, and vouchers lost or mislaid, it would open up a fountain of litigation and trouble upon society which would be but poorly compensated by adhering to a technical subtlety, to declare that these proceedings- were coram non judice, and void. Every experienced practitioner, in the country especially, is aware, that before the Orphans’ Court such matters have been adjusted. Time and the opinion of parties have settled down upon them as rightfully transacted, and we think that the judgment of society was in accordance with the statutory law.
It was objected also in this Court, that the proceedings ought to
The parties to the trust estate were in Monroe county, in the bounds of which the testator resided in his lifetime.
All the proceedings in Northampton county were finally ended, and the proceedings in Monroe were de novo.
The decree of the Court below dismissing the proceedings, is reversed, and a procedendo awarded.