51 Pa. Super. 7 | Pa. Super. Ct. | 1912
Opinion by
This proceeding was originated in the court below in a most unusual manner. Dorian, the executor of the will of Szovak, had brought, in the court of common pleas of Cambria county, an action against the beneficial society, of which the decedent had been a member, to recover the sum of $1,000, benefits alleged to be due
The right which was involved in the controversy which the court below voluntarily assumed the duty of determining was not the right of possession of or title to personal property which ever had been in the possession of the decedent or of the executor of his will. The right which the executor was asserting was founded upon an alleged executory contract, under which the beneficial association became upon the death of Szovak indebted to his estate in the sum of $1,000. The right to receive this money may have been an asset of the estate, but it was still only a debt, which must be collected, if not paid voluntarily, by an action at law against the debtor, which the orphans’ court was without jurisdiction to entertain: Springer’s Appeal, 29 Pa. 208; Shortlidge’s Estate, 214 Pa. 620. The petition of the beneficial association admitting that it was indebted to some person for the amount of the benefits in question but asserting that it was in doubt as to whether it was indebted to this estate or to some one or more of nine living persons, disclosed nothing which could confer jurisdiction upon the orphans’ court. If this was a debt due the estate, the executor was entitled to receive payment, and the money would be subject to the jurisdiction of the orphans’ court, after it came into his hands. If the debt owing by the association was due to some one or more of the nine living individuals, it was not an asset of the estate, and over it the orphans’ court had no jurisdiction. The question at that stage of the proceeding was, To whom is this debt due? “What act of assembly has given the orphans’ court jurisdiction to determine that question, and order the debtor to pay the administrator or pay into court — an order, of course, to be enforced by attachment or execution? .... Even if the claimant of the fund had been a resident of Dauphin county, he could not have been made a party to this proceeding and his claim disposed of in this sum
The decree of the court below is reversed, and the order appointing an auditor and all the subsequent proceedings are set aside.