9 Pa. 416 | Pa. | 1848
The 38d section of the act of 14th June, 1836, provides that “ the several Courts of Common Pleas shall have the same powers and authorities, and the manner of proceeding to obtain the appearance of persons amenable to their jurisdiction, in cases of trust, and to compel obedience to their orders and decrees, and enforce execution thereof, shall be the same as are now by law vested in and provided for the several Orphans’ Courts of this commonwealth.” The proceedings here appealed from were had under this act. But they are deformed by the confusion of process and incongruity of action which too often characterize the practice of our tribunals, when the prescribed path diverges from the -course of the common law. This unfortunate result of carelessness and inattention mars the symmetry of our system, and often creates difficulties -which even a limited regard to wholesome legal forms would avoid. The statutes which define the jurisdiction of the Orphans’ Courts, and direct the mode of its exercise, had it not in view to cumber the proceedings of the courts with the elaborate forms of equity pleading, or to require the niceties which time has introduced into the forms used in chancery. But it was certainly to be expected that some attention would be paid to the simple and easy mode of procedure furnished by the 57th section of the act of 1832. That directs, that on the petition of any person interested, setting forth facts necessary to give the court jurisdiction, the specific cause of complaint and the relief desired supported by oath or affirmation, the Orphans’ Court, or any judge thereof in vacation, may award a citation returnable at a day certain, &c.; and proceeds to prescribe the manner of its service, return, and the subsequent steps to he taken in the cause. Instead of following these directions, we have, in this instance, an unseemly jumble of the citation given by the statute and the rule to show cause of the common-law courts, the latter, too, requiring the respective defendants to answer why certain things should not be done and certain remedies administered, neither suggested nor specifically prayed for by the petition which initiated the inquiry. These are irregularities that might almost be termed gross. But as they involved no positive injury to the defendants, and no objection to them appears to hare been taken below, "we do not think they present a ground for reversing the decree. The 19th section of the act of 1836 empowers the court to compel a trustee to perform such acts as are required by or consistent with the duties of the trust; and the 28th section confers the right, generally, to make such orders and decrees as shall be according to law, or the terms and intent of the
These remarks sufficiently answer the appellant’s third specification of error, namely, that the rules granted and the various decrees made thereon, are not in conformity with the prayer of the petition.
The second specification, complaining that the proceedings against the defendants were joint, is unfounded in fact. It is true there was but one petition, but it prayed for a distinct citation against each of the defendants, which was accordingly awarded, and all the subsequent steps, though parallel, were severally taken against the alleged defaulting trustees. There was, undoubtedly, incongruity in treating both as subsisting trustees at the same moment of time, since, if Simpson was the trustee, Johnson was not, and vice versa. But as it will presently be shown, the order reinstating Simpson was illegal and void — the proceeding against Johnson is not impeachable on this ground.
Nor was there error in decreeing against Johnson before replication to his answer. When first appointed a trustee, he was directed by the court to give security for the faithful execution of the trust. It was entirely competent to the court to make the order; yet the new trustee, though he received the fund from his
The petition of Sybilla. Armstrong and others could work no difference in the duty of the court, for they had no power to alter the law of the trust. It is suggested they are under coverture, but whether or not, it is enough that others having an interest in the ultimate safety of the fund, have invoked the aid of the law.
What has been said, disposes of the whole case, so far as Johnson is concerned, except the objection raised to the jurisdiction of the court. This is based on the statutes regulating the respective jurisdictions of the Common Pleas and Orphans’ Courts, in reference to trusts. There has, upon this point, been some confusion of legislation; and the attention of the courts has consequently often been called to the consideration of it. It has been so thoroughly investigated in the decided cases, that a repetition of the argument would be more than superfluous. The result of them is, that where a trust created by will is annexed to the office of executor ratione officii, the jurisdiction is in the Orphans’ Court; but where it is devolved on a person nominatim, and not merely as executor, the control of the trust is in the Common Pleas, though the same person be also named executor. In Wheatly v. Badger, 7 Barr, 459, the Chief Justice, after discussing this question of jurisdiction, points out the difference between the duties of a general trustee and those of an executor, and suggests that perhaps the only case in which there is an inseparable union, is where the trust is given to the executor by the style of his office, and not by his name — where it is given to the officer, and not to the man; and
The result is that, though the decree against Johnson was reached through some irregularities, the record presents nothing by which it can be fatally impeached.
But there is a vital objection to the proceedings against Simpson, Having duly settled his account, in pursuance of the 22d section of the act of June, 1836, he presented his petition to the proper court, praying to be discharged from the office of trustee. Notice of this application was, in obedience to the direction of the court, given to Mrs. McMinn, as cestui que trust. On the return of the rule granted for this purpose, she appeared, and by petition, after assenting to Simpson’s discharge, prayed the appointment of Johnson as his successor. Accordingly, on the 16th of November, 1846, the court appointed Johnson “ trustee for the said Mary McMinn under the said will, in the place of the said Edward Simpson, agreeably to the prayer of the said petition,” and approved of one Bradshaw as his surety, though no distinct order for security had been
The avowed object of this procedure is to make Simpson liable for the fund, which, more than a year before, he had paid to Johnson as his successor in the trust. Was it competent to the court to do this ? The grounds upon -which it was asked by the petition of the complainants, are, first, that notice of Simpson’s application was not given to all the parties interested in the trust; and, second, that Johnson had not given security as trustee, at the time the trust fund was paid to him by Simpson. Upon these suggestions the court seems to have acted. But what is this but an attempt to correct the bygone mistakes of the court itself at the expense of the party ? a thing not within its power, as is proved by Hassler’s Appeal, 5 W. 176, and by reason independently of authority. There, the effect of the new decree was to fix on a party a debt he had never contracted to pay; here, it is to compel him to pay over again a sum before paid under the order of the court. This is sought to be justified by imputing to the former trustee the oversights committed not by him, but by the tribunal having jurisdiction of the subject. By Simpson’s petition, the will creating the trust was brought distinctly in view, and it thus became the duty of the court to designate the persons to whom notice of the application should be given. Mrs. MeMinn, alone, was designated, and upon her notice was accordingly served. In this there is' no pretence that any imposition was practised or concealment attempted by
But the appellees seek, in this court, to sustain the decree appealed from, on the ground of imputed fraud practised by Simpson, Johnson, and Mrs. McMinn, in procuring the decree of discharge. Questionless, a decree obtained by fraud may be impeached by original bill, even without the leave of the court (1 Pr. Wms. 736; 2 Ib. 73; 3 Ib. 111), but then the fraud used in obtaining the decree is the principal point in issue, and necessary to be established by proof, before the propriety of the decree can be investigated. When once shown, the court of chancery will restore the parties to their former situation, whatever their rights may be: Birne v. Hartpole, 5 Bro. P. C. 197, Toml. ed. But the bill must set out the circumstances of the fraud. When this is done, the decree cannot be pleaded in bar, without proper averments, negativing the fraud, supported by an answer fully denying the charge of the bill: Wichalse v. Short, 3 Bro. P. C. 558, Toml. ed.; S. C. 2 Eq. C. Ab. 177 ; 2 P. W. 74 ; 6 Ves. 596; Mit. Eq. Pl. by Jeremy, 92-4, 239, 255. In our case, however, the petition contains no hint of fraud committed by the defendants, nor does the record furnish any evidence of its existence. In the absence of such suggestion, no plea or answer was requisite. Simpson might well deem himself safe in resting on the inviolability of the decree discharging him, and this may account for his non-appearance. Were there even proof of fraud, it ought not to affect him here, for he had a right to know it is alleged, and thus have an opportunity to put it in issue before evidence of it can be received. It would be extremely harsh and unjust to charge a trustee on the foot of dishonest practices, without notice of an intent to impeach his conduct on that ground, and an opportunity afforded to make his defence.
Should the appellees deem this ground tenable in point of fact, they may, perhaps, put themselves in a position to show it, by a bill properly formed. I say perhaps, for I will not affirm that, certainly, this course may be pursued. But, in the mean time, the decree, so far as it touches Simpson, must be reversed.
Decree as to Johnson affirmed, and the decree annulling the decree discharging Simpson, &c., reversed.