224 Pa. 536 | Pa. | 1909
Opinion bt
This case is so clearly and radically wrong that all that is necessary to reverse it is to state the undisputed facts. The error of the master and of the court may be attributed to the manner in which the case was presented for their consideration.
James Mulholland died in 1876, leaving to survive him five children and a brother Felix. He was seized in fee of certain real estate in the city of Philadelphia at the time of his death, and his five children conveyed to his brother Felix “one undivided sixth part of and in all the real and personal estate of which James Mulholland died seized and possessed.” Felix subsequently died intestate and left to survive him a widow, Sarah, and five children, all of whom died in their minority, intestate, unmarried and without issue prior to the death of
By virtue of the authority contained in the will, James Mc-Devitt, executor and trustee, executed and delivered a deed, dated January 6, 1902, and recorded the following day, to James Conway, conveying to him “all the right, title and interest of the said Sarah Mulholland deceased of, in and to” three lots or pieces of ground situate on the south side of Pine street and éast of Eleventh street in the city of Philadelphia for the consideration of $2,750. The deed recites that the property therein described is the same of which James Mulholland died seized and of which his five children conveyed the undivided sixth part to Felix Mulholland who died intestate seized of the said undivided interest in the property and leaving to survive him Sarah Mulholland and five children, all of whom died prior to their mother in whom all their interest in the premises vested. The deed to Conway is in the ordinary form used by an executor and trustee to convey real estate in pursuance of authority contained in the will. It recites the title to the premises conveyed from Thomas Fraley in 1848 to Sarah Mulholland, the authority conferred by the will on the executor and trustee for making the sale, and the appointment of the executor and the probate of the will. It contains the usual special warranty against acts done or committed by the executor.
Conway in pursuance of the title vested in him by the
The executor filed an answer in which he admits most of the facts averred in' the petition. He admits that Conway paid the purchase money in the belief that the executor had the right to convey to him a good title in fee and that the executor was of the same opinion; that the executor has funds
The answer having been filed, the court appointed a master who made a voluminous report, granting the prayer of the petition and awarding restitution of the money paid by Conway to McDevitt, but permitting Conway to retain the title to the property conveyed to him by the executor. The reason for the conclusion of the learned master is stated by him as follows: “The master and examiner finds as a fact that the said Sarah Mulholland was not of the blood of the first purchaser of said one-sixth part of the property hereinbefore described, and that the aforesaid consideration of $2,750 was paid by the said James Conway unto the said James Mc-Devitt, executor and trustee, by reason of a mutual mistake of fact, innocently committed and through no fault of either party thereto. It also appears that the parties to said mistake can be put in statu quo, no other rights having attached in the meantime.” The learned court below in a pro forma decree dismissed the exceptions and confirmed the master’s report absolutely. McDevitt, as executor and residuary devisee in trust, has taken this appeal.
It will be observed that the master committed manifest
Under the undisputed facts disclosed by the evidence, the orphans’ court had no power to set aside the sale and direct repayment of the purchase money to the executor. Such power would not exist in the orphans’ court if this had been a sale made in pursuance of its own order. In such cases, the court unquestionably has the authority to control the sale
We need not discuss or determine the extent of the powers of the orphans’ court in setting aside a sale made by an executor in pursuance of a power contained in the will. We have held that in a proper case, the orphans’ court has power to review, set aside, and if necessary to order a resale of real estate made under a testamentary power: Dundas’s App., 64
In addition to having accurate knowledge of the facts which would deprive him of the right to any relief in the orphans’ court at this time, the money which Conway now seeks to have returned to him was charged to the executor in the account which he filed and was distributed in 1902 to the legatees as directed in the testatrix’s will. Aside from any other reason, this of itself is an insuperable objection to the return of the money by the executor. He has disposed of it as directed in the will by order of the orphans’ court, and he cannot now be required to refund it. As appears by the order
The decree of the orphans’ coürt is reversed, and all the proceedings are set aside at the costs of the petitioner.