2 Whart. 330 | Pa. | 1837
The opinion of the Court was delivered by
[After stating the circumstances:]—No act of assembly has been pointed out, nor am I able to discover any, which authorises this court, on petition, to compel a trustee to pay over money, or to dismiss him from his trust. The first act on the subject is that of the 24th of March, 1818 ; and that applies only to voluntary assignments for the benefit of creditors, and to trustees of insolvent debtors, and gives the jurisdiction to the Common Pleas. The act of the 29th of March, 1819, confers the jurisdiction on the District Court. The act of the 29th of March, 1823, extends the fourth section of the act of the 24th of March, 1818, to conveyances in trust for femes covert, minors and others, and gives power to the Common Pleas to dismiss trustees, and appoint others. The act of the 14th of April, 1828, prescribes the mode of proceeding by the Common Pleas and District Courts, in voluntary assignments, or those by insolvents. The act of the 22d of March, 1825, is the first that relates to the Supreme Court, and empowers it to grant relief in equity, so far as respects the appointment of trustees, in case of death, infancy,- lunacy, or other inability; or where a trustee in a ■will renounces, or refuses to act; or where one or more trustees are dead, or non. compos mentis;-and also to compel the trustee, when the trust is expired, to convey the legal estate. The 2d section, authorises the court to proceed on petition of the cestui que use. The 3d section gives the trustee authority, after having executed the trust, to file his accounts in the Supreme Court, or District Court, or Common Pleas, on oath, and empowers the court to grant him a discharge, after citation and hearing. By the act of the 14 h of April, 1828, the Circuit Court, District Court and Common. Pleas, have the same power as thajt given to the Supreme Court by the act-of 1825. The act of the 21st of March, 1831, relates to voluntary assignments for creditors, and to the Common Pleas of Philadelphia County. The act of the 14th of June, 1836, extends only to the courts of Common Pleas.
The 13th section of the act of 16th of June, 1836, confers upon the Supreme Court and the several courts of Common' Pleas, the jurisdiction and powers of a court of chancery, so far as relates to “ the control, removal and discharge of trustees, and the appointment of trustees, and the settlement of their accounts;” and also, “ the care of trust-moneys and property, and other moneys and property, made liable to the control of the said courts,” and repeats the latter provision, when afterwards speaking of the Supreme
Supposing these clauses to give this court power to proceed against trustees by original process, in other cases than those embraced by the act of the 22d of March, 1825, yet as it is a chancery jurisdiction, and no other mode is pointed out, it can only be done by subpoena and bill, and not upon petition. The power to proceed by petition, given by the act of the 22d of March, 1825, is not repealed; that act is confined to cases, limited in their nature, and admitting a summary proceeding, without inconvenience. But without express power 'to proceed in other cases by petition, the oi'dinary mode of proceeding in chancery must be pursued, and is to be regulated, until altered, by the practice prescribed or adopted by the Supreme Court of the United States. The prayer of these petitioners, therefore, cannot be granted.
