5 Pa. 240 | Pa. | 1847
This is an amicable action, as'it would appear, although not so stated on the paper-book, in the District Court, and a case stated to -recover a legacy charged upon and payable out of land. In the case of Craven v. Bleakney, 9 Watts, 19; and by the ease of Downer v. Downer, same book, page 60, it was ruled by this court, that the Orphan’s Court had exclusive jurisdiction in such eases, under the act of 24th Feb. 1834, sec. 59. After the decision of these causes, in the region of my experience and practice, the law was considered fully settled; and in the tenth district, Judge White, remarkable as an able and clear-minded judge, nonsuited many plaintiffs who proceeded in the old form, and turned them over to the Orphan’s Court. Such is the tenacity, however, of customs and forms, in their hold upon the mind, that the old practice still lingered and lingers in some parts of the state. In Reed v. Reed,
Judgment reversed.
Reed v. Reed.
Error to the District Court of Mifflin county.
Per. CuRtAir__The statute which gives an action for a legacy against an executor holding assets in his hands, does not extend to an action against a devisee of land for a legacy payable out of it. The common law remedy in that case was sustained, not on the statute-, but on the ground of necessity, as a substitute for a bill in equity, and to prevent a failure of justice. But now the Orphan’s Court has jurisdiction in all cases of legacy, by force of the 59th section of the act of 1834, and the common law action previously in force, as a remedy for a case like the present, is consequently prohibited by the act of 1806. The present remedy is a petition to the Orphan’s Court, in the nature of .a bill in equity, to raise the legacy out of the land, and by that means com píete justice may be done.
Judgment reversed.