60 Pa. 481 | Pa. | 1869
The opinion of the court was delivered,
by
No question has been made by the parties as to the jurisdiction of a court of equity in this state to give the relief prayed for in this bill. It having been suggested that it would be an encroachment upon that, which, by the Acts of Assembly, is exclusively conferred upon the Orphans’ Courts, the attention of the counsel was directed to this point when the cause was ordered for reargument.
The learned and able gentlemen retained for the defendant, have, however, frankly conceded it. Consent, indeed, cannot give jurisdiction, and it is, therefore, deemed proper to say, that we entertain no doubt upon the subject. The Orphans’ Court, by the Act of June 16th 1836, § 19, Pamph. L. 792, has jurisdiction of proceedings for the recovery of legacies, of the settlement of the accounts of executors, the distribution of the estates of decedents, and in all cases wherein executors may be possessed of, or in any way accountable for any real or personal estate, of a decedent. It is also the settled doctrine that the jurisdiction of that court within its appointed orbit is exclusive: Whiteside v. Whiteside, 8 Harris 473; Shollenberger’s Appeal, 9 Harris 337; Black v. Black, 10 Casey 354; and no doubt a court of equity cannot interfere with a matter of which the Orphans’ Court has
But it is not in every ease, which may incidentally bear upon the settlement of the estate of a decedent, that its jurisdiction is .exclusive; otherwise, all remedies for the recovery of claims against such estates would necessarily be drawn within its vortex. This has never been pretended: McLean’s Executors v. Wade, 3 P. F. Smith 146; Sergeant’s Executors v. Ewing, 6 Casey 75. This is not a proceeding to recover a legacy charged on land, nor to compel a settlement or distribution, but falls within the admitted scope of the authority of a court of equity in cases of trust. The legal title being in the defendants, as heirs at law, that court, if it is a case of election, holds them bound as trustees to compensate the devisees disappointed of the bounty intended for them by the testator.
The jurisdiction in such a case is expressly recognised as concurrent in Lewis v. Lewis, 1 Harris 79. The decree of this court will doubtless be conclusive as to the subject-matter upon the final settlement of the account of the executors, but so would a judgment against them in a court of law, if no fraud or collusion were shown. We pass, therefore,- to the main question.
It may certainly be considered as settled in England, that if a will, purporting to devise real estate, but ineffectually, because not attested according to the Statute of Frauds, gives a legacy to the heir at law, he cannot be put to his election: Hearle v. Greenbank, 3 Atk. 695; Thellusson v. Woodford, 13 Ves. 209; Breckinbridge v. Ingram, 2 Ves. Jr. 652; Sheddon v. Goodrich, 8 Id. 482. These cases have been recognised and followed in this country: Melchor v. Burger, 1 Dev. & Batt. 634; McElfresh v. Schley, 1 Gill 181; Jones v. Jones, 8 Gill 197; Kearney v. Macomb, 1 C. E. Green 189. Yet it is equally well established, that if the testator annexes an express condition to the bequest of the personalty, the duty of election will be enforced : Boughton v. Boughton, 2 Ves. Sen. 12; Whistle v. Webster, 2 Ves. Jr. 367; Rex v. Wauchop, 1 Bligh 1; McElfresh v. Schley, 1 Gill 181. That this distinction rests upon no sufficient reason, has been admitted by almost every judge before whom the question has arisen. Why an express condition should prevail, and one, however clearly implied, should not, has never been, and cannot be, satisfactorily explained. It is said, that a disposition absolutely void, is no disposition at all, and being incapable of effect as such, it cannot be read to ascertain the intent of the testator. But an express condition annexed to the bequest of the personalty does not render the disposition of the realty valid; it would be a repeal of the Statute of Frauds so to hold.' How then can it operate any more than an implied condition to open the eyes of the court so as to enable them to read those parts of the will which relate
The mind instinctively shrinks from the task of frustrating the clear intention of a testator, aiming too to make all his children equal, upon authorites establishing a distinction without any dif
Some cases have arisen in England upon wills disposing of English and Scotch estates, in which the judgments have not been harmonious, nor can any general principle be extracted from them bearing upon this question. In Brodie v. Barry, 2 Ves. & Beames 127, an heir at law of heritable property in Scotland, being also a legatee under a will not conforming to the law in Scotland as to heritable property, was put to his election. By that law a previous conveyance by deed was necessary, according to the proper feudal forms, upon which the uses declared by the will might operate. As by the law of Scotland the heir at law in such a case was put to his approbate or reprobate (the Scotch law term for election), and it was very similar to a will of copy-hold, Sir William Grant considering the law of both countries to
In this state of the authorities, we are clear in holding that we are not precluded by force of the New Jersey Statute of Frauds, from reading the whole will of the testator in order to ascertain his intention in reference to the bequest of personalty now in question. We are equally clear that it is a case of election. The intention of the testator does not rest merely upon the implication arising from his careful division of his property, among his children, in different classes, but he has indicated it in words by the clause: “ I direct and enjoin on my heirs, that no exception be taken to this will, or any part thereof, on any legal or technical account.” It is true, that for want of a bequest over this provision would be regarded as in terror mi only, and would not induce a forfeiture: Chew’s Appeal, 9 Wright 228. But, as has been often said, the equitable doctrine of election is grounded upon the
This, however, is not the only mode in which the equity of the case can be reached. The doctrine of equitable election rests upon the principle of compensation, and not of forfeiture, which applies only to the non-performance of an express condition: 2 Madd. Ch. 49. Besides, no decree of this court could authorize the guardians of the minors to execute releases of their right and title to the New Jersey lands, which would be effectual in that state. The alternative decree prayed for in the bill is that which is most appropriate to the case.
Decree reversed, and now it is ordered, adjudged and decreed, that the executors of the last will and testament of Frederick Augustus Yan Dyke, deceased, shall pay to the defendants, Mary A. Yan Dyke, Margaret P. Fernald, and Frederick A. Pease, Elizabeth Pease and Augusta Pease, such sum less than the amount of their respective legacies, as will compensate the said plaintiffs and'the surviving sons of the testator for the value of the shares of the said legatees in the said real estate in New Jersey, and that it be referred to James Parsons, Esq., as master to settle and report such respective amounts.