83 Pa. 468 | Pa. | 1877
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’
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’
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.