209 Pa. 104 | Pa. | 1904
Opinion by
William Hall in 1884 became a trustee under a deed in which
This appointment was made under the Act of April- 14, 1828, P. L. 453. That act is entitled “ An act, to prevent the failure of trusts, to provide for the settlement of accounts of trustees and for other purposes.” After providing for the appointment in case of death, it provides as follows : “ It shall and may be lawful for the cestui que trust or other person or persons interested in the execution thereof to apply by petition, setting forth the facts of the case under oath or affirmation to either of the said courts within the proper district, which courts are hereby authorized to hear and determine the matters therein contained.” Thus when a vacancy in a trust by reason of death occurs, the cestui que trust is authorized to file his petition for an appointment to fill such vacancy and the court of common pleas of the proper county is empowered, after hearing, to make the appointment. The jurisdiction springs from the statute and is expressly given in plain terms, upon petition by
In Dresher v. Allentown Water Company, 52 Pa. 225, it is said : “ It is the right of the parties to the partition that is the subject of adjudication. Orphans’ court decrees are doubtless conclusive. They cannot be impeached collaterally. But like all other judgments they are conclusive only of the thing adjudicated.”
In Sheets v. Hawk, 14 S. & R. 173, it is said: “ Now, as it appears on the record that the court had jurisdiction to discharge, and as they have exercised that legitimate power it cannot consist with the general analogy of the law, that in a collateral action there can be any inquiry on the facts which they have decided.”
In the present case the petition was filed by the son John and his wife, the cestui que trustent named. The deed gave them the rents and income of the property during their lives and also the power in conjunction with the trustee to unite in a conveyance to end and determine the trust. Thus they were entitled to receive the income with the express authority to end the trust if they so desired to do and this they have done. The deed vested in them a complete control over the income and the entire estate, and by its terms passed only a contingent interest to appellants. The petition thus filed by the petitioners, who were the only parties then concerned, gave the court of common pleas jurisdiction to hear and determine the matter of appointment and the power after hearing to make the same.
In view of this conclusion the assignments of error are not sustained and the judgment is affirmed.