252 Pa. 381 | Pa. | 1916
Opinion by
Charles Herzog died testate in March, 1911, domiciled in Duval County, Florida, and seized of certain real estate in that county on which he had given an option to purchase at $12,000. Letters testamentary oh his estate were granted to Richard W. Sutcliffe in Philadelphia County, this State, and in Duval County, Florida. The assignee of the optionees exercised the option to purchase the real estate, and by deed dated January 19, 1912, in which the consideration was stated to be $12,-000, the executor, a defendant in this proceeding, conveyed the property to the purchasers. By a deed of the same date, containing a clause of special warranty and stating the consideration to be $10 and other good and valuable consideration, Mrs. Herzog, the widow and a defendant here, also conveyed the property to the purchasers. Under the advice of counsel that, by the law of Florida, Herzog’s will was revoked by his subsequent marriage to Mrs. Herzog and that she was, therefore, the owner of the land, the purchase-price of the real estate was paid to her. In a proceeding instituted by her, the Supreme Court of Florida, however, subsequently held this to be an erroneous view of the law, and that Mrs. Herzog had only a dower interest in the land.
In September, 1912, Sutcliffe filed his account as executor with the register of Philadelphia County, and an adjudication was filed October 10, 1912, by the Orphans’ Court. The legatees, the plaintiffs in this proceeding, were represented by counsel at the adjudica
Subsequently, on the application to the Orphans’ Court by one of the legatees, the executor was cited to show cause why he should not be dismissed from his office or be required to enter security for the faithful performance of the trust. An examiner was appointed who reported the facts, but the proceeding remains undisposed of.
This bill was filed in the Common Pleas and avers a fraudulent combination between Sutcliffe and Mrs. Herzog to enable her to divert and appropriate the purchase-price of the Florida real estate, and prays that she may be decreed to have received the purchase-money, as a trustee ex maleficio for the legatees, the complainants in this suit, and that she and the executor be ordered to repay the money to a trustee for Herzog’s estate. The learned auditing judge found that the evi
We need not consider the questions raised by the several assignments of error in view of the facts found, on sufficient evidence, by the court below, as we are of opinion that the Orphans’ Court had jurisdiction, and as the complainants have presented their claim, of surcharge against the executor at the adjudication of his account in the Orphans’ Court, and that the proceeding is still pending and undisposed of, they are confined to that forum in the enforcement of the claim. There can be no question of the jurisdiction of the Orphans’ Court. Its authority is ample, not only to ascertain the amount of the estate of a decedent and order its distribution, but to determine all questions arising out of alleged defaults of his personal representative, and to enforce its conclusion by an appropriate decree. The court has all the means of enforcing the decree possessed by courts of equity and of law: Mussleman’s App., 65 Pa. 480, 489. It clearly has the authority to determine whether an executor has fully accounted for the assets of the estate, and to surcharge him to the extent he has failed to do so. This is one of the well settled jurisdictional powers of an Orphans’ Court in this State.
When, therefore, the legatees, the complainants here, went into the Orphans’ Court of Philadelphia County and sought to surcharge the executor with assets in this jurisdiction not accounted for, they were in a tribunal which had authority to adjudicate the question and were required to pursue their remedies in that court. “This equitable jurisdiction (of the Orphans’ Court) having attached,” says the court in Odd Fellows Savings Bank’s
The decree of the court below is affirmed without prejudice to the plaintiffs to proceed for relief in the proper form.