Delbert's Appeal, 83 Pa. 468

Delbert's Appeal

83 Pa. 468 | Pa. | 1877

Mr. Justice Paxson

delivered the opinion of the court, May 7th 1877.

This was a proceeding to compel James S. Huber to settle an account as trustee in the Orphans’ Court. The case was heard below upon petition and answer. The application for a citation was resisted by Mr. Huber upon the ground that nothing had been shown “ to give the Orphans’ Court jurisdiction of the said James S. Huber, as he was not shown to be a trustee for any one in whose estate the petitioners had any interest, nor was he alleged to have in his control or possession any property derived directly from any decedent, or indirectly through the action of-the court.” While it was not alleged by the petitioners that Mr. Huber was technically a trustee, it was nevertheless contended that he was a de facto trustee; that after the death of Mr. Stiles, with the assent of the parties in interest, or at least a portion of them, he did assume and continue the management of the trust; that a short time before assuming it he applied to the Orphans’ Court to be appointed trustee; that he was so appointed by the said court, but refused to give the security required, and continued to act as trustee de son tort. It was urged on behalf of the petitioners that as trustee de son tort' he was liable to account in the Orphans’ Court. It is manifest that, if he cannot be required to account in that capacity he cannot be held liable at all in said court. It matters not whether we regard him as the agent of the former trustees, or as the bailee or agent of the cestuis que trustent, he is not a trustee within the meaning of our statutes defining the jurisdiction of the Orphans’ Court. The eighth paragraph of the 19th section of the Act of 16th of June 1836, Pamph. L. 792, provides that the jurisdiction of the Orphans’ *473Court shall embrace “all cases within their respective counties, wherein executors, administrators, guardians or trustees may be possessed of, or are in any way accountable for, any real or personal estate of a decedent. ’ ’ At first view this language might seem broad enough to cover this case. But the word “trustee,” following as it does the words “ executors, administrators and guardians,” was evidently not used in its broad sense, but relates solely to persons acting in a fiduciary capacity by virtue of a will, or of an appointment by the register or Orphans’ Court having jurisdiction of the estates of deceased persons. This was the view taken of it in Fretz’s Appeal, 4 W. & S. 433. The words “ trust” and “ trustee,” as was said by Mr. Justice Huston in that case, are often used vaguely, and in a sense not proper in legal proceedings. The books are full of cases in which parties have been held to be trustees for certain purposes, and in relation to certain property, yet as to whom the statutory jurisdiction of the Orphans’ Court could not attach. Thus in Fretz’s Appeal, supra, a person who had received from the testatrix all her papers, bonds and money, to divide among her heirs after her death, was held not liable to account therefor in the Orphans’ Court. The remedy was by an action at law in the name of the administrator. In that case there was a clear trust. But it was not created by will, nor did the trustee derive any authority from the register or the Orphans’ Court.

The mere possession of the propérty of a decedent, even under circumstances from which a trust will be implied, does not of itself give the Orphans’ Court jurisdiction over the person holding such property. The executor or administrator may recover the latter by appropriate legal proceedings, after which he may be called upon to settle an account therefor in the Orphans’ Court. It is said, however, that Mr. Huber may be held to account as a trustee de son tort. No authority was furnished for this position, nor have I been able to find any. On the contrary, it was said by Chief Justice Tilghman in Peebles’s Appeal, 15 S. & R. 39, that an executor de son tort cannot be cited to account before the register. While this remark is open to the criticism of being dictum, the absence of any attempt in this state to compel an executor de son tort to account in the Orphans’ Court is a persuasive argument that he is not so liable. There may be such a case, but I have not found it, nor has it been called to our attention. In the fifth chapter of Williams on Executors (vol. 1), the learned author defines exhaustively the liabilities of an executor de son tort. No mention is there made of any liability to account in this way. The remedy against such an executor is an action at law in the name of the lawful executor or administrator, or by bill in equity when an account is necessary. An executor de son tort owes no duty to the Orphans’ Court and is not liable to its jurisdiction. Were the rule otherwise it might lead to serious confusion. It would be an anomaly in Orphans’ *474Court proceedings to have accounts from one or more executors de son tort pending at the same time with the account of the lawful executor. There can be but one accounting in the same estate, though there may be several accounts by the executor or his -successors in the trust. What has been said in regard to an executor de son tort applies with equal force to a trustee de son tort.

It may be that Mr. Huber would have been liable to account in the Orphans! Court had he acted under the appointment of that court. In such case he could not have set up his failure to enter security as a reason why he should not account to the extent of his dealings with the estate under his appointment. But in his answer he flatly denies having so acted. The court below says he “ never took upon himself the duties of trustee, but refused to qualify,” &c. As before observed, this case was heard upon petition and answer. There was no finding of the fact that Mr. Huber ever did any act under and in pursuance of his appointment as trustee by the court below. We think, therefore, that the citation was properly refused.

The decree is affirmed, and the appeal dismissed at the costs of the appellants.