161 Pa. 536 | Pa. | 1894
Opinion by
The purpose of the bill is to set aside a written agreement on the ground that it was fraudulently procured bjr defendant while in a confidential position to a decedent of impaired strength, of mind, and, further, for an account of investments made and moneys collected and retained by defendant thereunder. This is a subject of general equity jurisdiction which resides in the common pleas, and not in the orphans’ court. Under ordinary circumstances, therefore, the orphans’ court would have no control over the money in the hands of the attorney in fact. But as the attorney was made also executor, it became his duty in this capacity to put into his account the balance in his hands as attorney, and only thereby did the orphans’ court acquire any jurisdiction over that balance. To the extent that that
To reach the real question in the case we must consider the exact extent of what was before the orphans’ court, for it was dealing with a subject not within its general jurisdiction, but only brought within it by special circumstances, and to the extent made clearly necessary by those circumstances. That court was not the proper tribunal to order the surrender and cancellation of the agreement, and was in no wise prompted to the consideration of that subject. As a fact the attorney to account, and the executor to ask the accounting were the same person, and the latter’s duty prima facie would appear to have been fulfilled by assuming that the agreement was valid, and receiving the balance becoming due on that assumption. That was all that was before the court, and that is the utmost extent of the conclusiveness of its decree.
On the other hand the gravamen of the present bill is the fraudulent character of the agreement, and the relief asked is to set it aside. That as already said is the subject of general equity jurisdiction, and belongs to the common pleas. The further relief by accounting for what was done under it is subordinate and incidental. Whether any such relief is to be given at all depends first and solely on the determination of the main question. If it is to be given, then the amount of it will depend on general principles applied to the evidence, and in such application the decree of the orphans’ court and its extent as a conclusive settlement will receive due consideration. ■
It may well be that this unfortunate controversy is, as the learned court below seems to have viewed it, an afterthought growing out of the changed relations of the parties interested, but the matters charged in the bill have not been adjudicated, and are therefore before the court for determination.
Decree reversed, bill reinstated and record remitted for further proceedings in accordance with this opinion.
