105 Pa. 315 | Pa. | 1884
delivered the opinion of the Court, February 25, 1884.
This is an action on the case against the defendant as executor of Mrs. McNulty, formerly Parsons, for her negligence and malfeasance as executrix of the last will and testament of James W. Parsons, deceased. The main ground of complaint is, that she did not within a reasonable time after his death, as surviving executrix of his estate, sell his real estate and apply the proceeds on judgment liens on the property, of which the plaintiff held one. The will of Mr. Parsons declared, “I also authorize and empower my executor and executrix to sell my Malt house property, and any and all other real estate of which I may or shall die seised or_ possessed, and make all needed deeds to grant and convey the same, and. to fix at their discretion and judgment terms of sale, prices
It was held that, in case of undue delay in the sale of the real estate of a decedent, the proper remedy for a lien creditor to enforce a sale, was under the Act of 29th March, 1832, by petition to the Orphans’ Court; and that delay in making sale for the payment of debts by an executrix, who had discretionary power of sale under the will, furnished no just cause for her removal.
• In the present ease the plaintiff seeks to recover on substantially the same facts that were shown in the case cited. If the plaintiff has any remedy for alleged misfeasance or negligence of Mrs. Parsons, as executrix of her husband’s will, in the care and management of his estate, the proper place to seek that remedy is in the Orphans’ Court. The power given and the trust committed to her are both virtute officii. The trust is not given to her by name but as executrix. Then not only has the Orphans’ Court full power to charge and surcharge her for dereliction of duty as such executrix, but it has sole jurisdiction of the testamentary trust imposed upon her. Innes’s Estate, 4 Whar., 184; Brown’s Appeal, 2 Jones, 333; Wapples’ Appeal, 24 P. F. Smith, 100. There, and there only is her liability under the trust to be settled and determined. The ground on which the plaintiff seeks to maintain this action arises from the facts that it was a creditor of the 'testator, and that she as his executrix, did not properly discharge her duty and trust, but was derelict therein, and mismanaged the estate to the injury of his creditors, of which the plaintiff was one.
Section 2 of the Act of 29th March, 1832, declares the Orphans’ Court “ to be a court of record with all the qualities and incidents of a court of record at common law.” Section 19 of the Act of 16th June, 1836, Pur. Dig., 1104, pl. 8, declares “the jurisdiction of the several Orphans’ Courts shall extend to and embrace, inter alia, all cases within their respective counties wherein executors, administrators, guardians or trustees may be possessed of or in any way accountable for, any real or personal estate of a decedent.”
These Acts and the enlarged powers and jurisdiction given to the Orphans’ Court, make the case of Torr’s Estate, 2
Although Mrs. Parsons was the residuary devisee, yet that fact does not aid the plaintiff. The claim to recover does not rest on any breach of her personal agreement to sell the property. No sale which she could have made as devisee, would have divested the liens or passed a title of any value to the purchaser. It was by virtue of the trust and her power as executrix, that a sale by her would have aided the plaintiff. It is only by her delaying so to sell that any creditor of her husband’s estate was injured.
It follows there was no error in entering judgment in favor of the defendant.
Judgment affirmed.