128 A. 487 | Pa. | 1925
Argued January 26, 1925. In the court below, the administrator c. t. a. of the estate of Catherine Schadt, deceased, filed a petition and an amendment to it, which, when considered together, averred that the surviving executor of that estate (himself since deceased) had appointed Charles H. Schadt *525 (also since deceased, respondent being the executrix of his will) as attorney-in-fact for him, as surviving executor of the Catherine Schadt estate, and under this authority respondent's testator had "sold properties, collected rent and divers other moneys due to the estate of Catherine Schadt"; that no account had been rendered or filed of the moneys thus obtained; that respondent, at various times, up to within two years prior to filing the petition, had recognized the previous existence of the relationship stated, admitted settlement and payment had not been made, and promised to make them, but had failed and neglected so to do. The petition prayed, and the court below granted, a citation requiring respondent to show cause why, as executrix, she should not render an account of those collections.
The answers, filed in response to the citation, did not deny that Charles H. Schadt had been such attorney-in-fact; or that, by virtue thereof, he had collected moneys belonging to the Catherine Schadt estate; nor did it aver he had ever accounted for, or paid over, those moneys. The jurisdiction of the orphans' court was denied, as were the alleged admissions and promises of respondent, and, in general language, the liability of the Charles H. Schadt estate to that of Catherine Schadt. It was also averred that, under the facts appearing in the petition, the claim was a "stale one and barred by law; and further that the petitioner has been negligent, careless and guilty of laches in trying to collect said claim."
The court below, being of opinion that it lacked jurisdiction over the controversy, dismissed the petition, and this appeal followed. The basis of its opinion is that section 9 (1) of the Orphans' Court Act of June 7, 1917, P. L. 363, 372, — which the court alleges is the only one under which the jurisdiction invoked can be sustained if at all, — is not broad enough to cover the subject-matter of this claim. We do not agree that it is the only subsection to be considered; subsections (d), (e) and (n) are also important. The four of them provide that "The *526 jurisdiction of the several orphans' courts . . . . . . shall extend to and embrace. . . . . .
"(d) The control, removal, and discharge of executors and administrators deriving their authority from the register of the respective county, and the settlement of their accounts;
"(e) The distribution of the assets and surplusage of the estates of decedents among creditors and others interested; . . . . . .
"(1) All cases within their respective counties, wherein executors, administrators, guardians, or trustees may be possessed of, or are in any way accountable for, any real or personal estate of the decedent; . . . . . .
"(n) The exercise of all other powers needful to the doing of anything which is or may be hereafter required or permitted to be done in said court, whether incidental to the powers hereinbefore enumerated or in addition thereto."
These subsections, except the last one, are but little more than a codification and a clarified restatement of the prior law on the subjects treated.
Of course, if the attorney and constituent had been acting as individuals only, the jurisdiction would necessarily be in the court of common pleas. So, also, if the attorney-in-fact were still alive, it might be (though we do not so decide, under the Act of 1917) that the only jurisdiction would be in that court, although the power of attorney was given by an executor, and the attorney-in-fact knew he was collecting assets of an estate under the charge and control of the orphans' court. Neither of these situations arises here. Petitioner is an administrator and respondent an executor; both are accountable to and under the control of the same orphans' court; the debts due by one estate are ascertainable by that court, and payable to whomsoever it shall direct; the assets due to and which were or should have been received by the other, are distributable under the authority of that court. "The settlement of [both of] *527 their accounts" is committed to the same court (subsection (d), supra), which, as shown above, is vested with "all other powers needful to the doing of anything which is or may be hereafter required or permitted to be done in said court, whether incidental to the powers hereinbefore enumerated or in addition thereto": subsection (n) supra.
In the instant case, there is no attempt to charge respondent's decedent as an administrator de son tort, as appellee seems to think. Under the admitted facts he collected, by virtue of the power of attorney, a sum of money for which he should have accounted to the estate represented by appellant. This gives rise to a contractual liability. Upon the settlement of respondent's account as executrix, petitioner will be entitled to have paid to him whatever sum the court finds to be due. Under such circumstances, it would be a strange anomaly if the court which was to award the payment did not have power to provide the means for ascertaining the amount; and it would be still stranger if, merely by reason of the fact that the claim was presented to the orphans' court, the burden of proof would shift from the one whose duty it was to account, to the one who was entitled to receive the account. No such reproach was cast upon the law, under the statutes in force prior to the passage of the Act of 1917, which, as already shown, does not reduce the jurisdiction, but, on the contrary, by subsection (n), enlarges or clarifies it.
In Tyson v. Rittenhouse,
In Tyson's Est.,
Under the facts appearing in those cases, and in the present one also, the jurisdiction of the orphans' court has never been successfully challenged. They have been cited with approval in a number of our later decisions, the most elaborate one being Williams' Est.,
What we have said necessitates a reversal of the order of the court below, but it does not require us to grant the prayer of the petition. On the question of jurisdiction no evidence was needed; the essential facts regarding that matter appeared in the pleadings. Hence no depositions were taken, and the other disputed issues were not considered. Now they have become important, and evidence must be produced to show the real facts. The proceeding being equitable in its nature, and there being no dispute regarding the giving of the power of attorney to respondent's decedent, his collection of estate assets under it, and his failure to account, those facts must be taken as admitted: Carr v. AEtna Accident Liability Co.,
The order of the court below is reversed and a procedendo is awarded. *531