Lafferty v. Corcoran, Appeal, No. 429

Appeal, No. 429 | Pa. | Mar 15, 1897

Opinion by

Mr. Chief Justice Sterrett,

This appeal by the plaintiffs, from the judgment in favor of defendant on his demurrer to their statement of claim, presents the single question, whether the statement is sufficient to warrant a recovery in favor of said plaintiffs. We think it is not, because it discloses no cause of action properly cognizable in the court of common pleas.

It is first averred, in substance, that in the testator’s lifetime defendant was employed by him at an annual salary of $600 to collect the rents of his real estate, etc.; that upon testator’s decease and the grant of letters to the two plaintiffs “they employed the said defendant to collect said rents .... and forthwith deposit the same in the safe belonging to the estate, .... where said money was to remain until deposited in the Fidelity Insurance, Trust and Safe Deposit Company to the credit of the estate of said Charles Lafferty, deceased. Defendant entered upon said employment, collected said rents, forthwith deposited the same in the safe of the estate, .... and from time to time deposited said money in the Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate.”

It is not alleged that defendant embezzled or otherwise misappropriated any of the money received by him, either as agent of the estate or of the plaintiffs, prior to his appointment by the orphans’ court as coexecutor and cotrustee with them of the estate of said Charles Lafferty, deceased, which appointment is stated to have been made on October 13, 1888. Indeed, the only apparent object in reciting the foregoing facts was as matter of inducement.

After stating that, on the day last named, “ the orphans’ court of Philadelphia county appointed the defendant an executor and trustee,” the plaintiffs aver that the “ defendant agreed, in addition to his duties as said executor and trustee, to continue to collect the rents from said real estate, deposit the same forthwith in the fire-proof safe belonging to said estate in the office of the executors, — such money to be from time to time deposited in the Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate; and in consideration thereof plaintiffs agreed to pay defendant said salary in addition to his share of commissions from said estate.”

It is then averred that, “between the 1st day of November, 1890, and the 1st day of June, 1894, at various times well known to the defendant, and which he refuses to disclose to plaintiffs, and which plaintiffs do not know, the said defendant, having collected large sums of money from said rents and deposited said sums in the fire proof safe, subsequently, without taking them out for deposit, took the same into his possession and converted to his own use $10,700, so deposited in said fire proof; ” etc.

This charging clause was doubtless intended to contain an averment that the money alleged to have been appropriated by defendant to his own use was collected by him in his capacity as agent for the estate, and not by virtue of his higher office as executor, but it is not so averred, and in that respect the statement is defective. That, however, is comparatively unimportant. As one of the three executors, defendant had an undoubted right to collect the rents in question — in fact it was his duty to do so — and, whether he collected them avowedly as agent, or by virtue of Ms office as executor, can make no material difference. According to the averments the money went into his hands, and, as executor, he was and is undoubtedly accountable therefor to the court that had and still has exclusive jurisdiction of his accounts as executor and testamentary trustee. When called upon by that court to account for the rents so collected between Novenber 1, 1890 and June 1, 1894, it would be no answer for him to say that such rents as he did collect were received by him merely as agent under an agreement between himself and Ms coexecutors, and that he was therefore accountable to them and not to the orphans’ court. No agreement that was made or could have been made between him and his coexecutors would have the effect of relieving him from any of Ms official obligations as executor or trustee, or from accounting to the proper court, in the ordinary way, for all moneys of the estate received by him, etc. If we should hold that the common pleas has jurisdiction of the claim here presented, it would necessarily involve an inquiry as to defendant’s receipts, disbursements, etc., quite as full and complete as that required in the orphans’ court. The real issue evidently is one of accounting between the parties as eoexecutors and cotrustees, and is therefore a proper subject of inquiry in the orphans’ court which has exclusive cognizance of the matters involved. Any other practice would inevitably lead to confusion and conflicts of jurisdiction, which cannot be tolerated.

The orphans’ court has ample power to afford all needed relief in the premises. Its authority is plenary, embracing .as it does all the powers of a court of chancery. Under the act of 1832 it can require executors to give additional security; and on their failure to do so, it can remove them from office, require them to transfer the trust property, etc., and, if need be, enforce its mandates by proceedings for contempt. On proper showing that an executor is about to abscond, etc., or is wasting the trust property, ample remedy by attachment etc., is provided.

Without further elaboration, it is sufficient to say, we are clearly of opinion that the remedy sought to be enforced in this action is vested exclusively in the orphans’ court, and hence the learned court below committed no error in sustaining the demurrer, for the second and third reasons assigned.

Judgment affirmed.