168 Pa. 204 | Pa. | 1895
Opinion by
We agree with the learned judge of the orphans’ court that the will of Levi Schwartz conferred upon his widow, the petitioner in this ease, power to divide and parcel out his real es
Whether under the power to subject the shares to terms and conditions, she could determine the relative proportions of the-shares and make an unequal distribution it is unnecessary to consider, as the whole proceeding was outside of the jurisdiction of the court, and any expression of opinion upon the subject would be a mere dictum. The question of jurisdiction was distinctly raised by the supplemental answer to the petition. There is no express grant of power to the orphans’ court which will support the decree asked for, and it cannot be sustained as an incidental power. Even a court of general equity jurisdiction does not possess the power here invoked. No decree can property be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the court is required to supply some omission in the terms of the instrument creating the power — as in the case of a sale under a will directing a conversion but not saying by whom it shall be made. In other cases the decree of the court would add nothing to the-efficacy of the power if property exercised, nor give it validity if improperly exercised. Here there is no trust; the power is-a mere naked power, purely discretionary with the donee and not subject to the control of any court: Perry on Trusts,
The order of the court denying the prayer of the petition is affirmed.