| Pa. | Jan 14, 1871
The opinion of the court was delivered,
— In West’s Appeal, antea, p. 186, we held that the Act of April 17th 1869, relating to escheats, though a supplement to the Act of September 29th 1787, was without adequate means of enforcement in relation to trusts, the proceeding under the Act of 1787 being inapt, and not capable of being applied to trusts.
That is said in the printed argument of this case to be an obiter dictum. We do not think so. Two questions arose there, one, whether the surplus fund of the Philadelphia Saving Eund Society was the subject of escheat; the other, whether the mode of proceeding was authorized. As to the former, we held that the surplus was the property of the corporation for the ends and uses of the charter. And as to the latter, that if the proceeding was under the 9th section of the Act of 1865, it must be by quo warranto ; and if under the Act of 1869, to escheat a trust, that act had provided no mode for its enforcement; and therefore, that there was no authority in the deputy escheator to proceed at all. Hence we concluded, that by reason of the entire want of authority, the proceeding was illegal and void of sovereign sanction. And on this ground he was to be enjoined as an individual acting wholly without authority; and not as an officer executing a lawful function. That case is therefore an authority, and was based, we think, on sufficient reason; nor did we overlook, as it is thought, the character of ■ the interest to be escheated, as the beneficial interest only of the cestui que trust; but the question in our minds was, how this beneficial interest could be proceeded against under and according to the mode provided in the Act of 1787, and its supplements, allowing the most liberal interpretation of its provisions. The case of The Commonwealth v. The North American Land Co., 7 P. F. Smith 102, is not parallel. That was a case of partnership property held by persons, all of whom were dead; and there is no difficulty in applying to such a case the proceeding under the Act of 1787. It was nothing more than a substitution of the property of partners for that of a single owner, and required no new mode. The case was new, but the proceeding similar. Here we have, however, not only a new case, in that of a cestui que trust unknown for seven years, but a necessity for a proceeding adapted to the case of a living trustee, with a title and a right to administer the trust unembarrassed by a dissimilar and discordant proceeding. To escheat the property in his hands, the Commonwealth must provide a means to come in under the trust deed, in room of the cestui que trust. It is just here the Act of 1787 fails to furnish an appropriate remedy. Under that act the
These facts being found, the property can be identified and described, and the inquisition certified into the proper office, and the Commonwealth can seize, attach or secure the property, unless the person in possession give bond to traverse the inquisition. These facts being found the Commonwealth has a primá, facie title, and the person in possession presumptively has no title, and is turned around to be the contestant. But a trustee is lawfully seised or possessed and no process can displace him, until he has had a day in court, and the beneficial interest is established against him. Clearly he is not in the case of one having a mere possession of property, which, by the seisin or possession and death of the owner, is east as a waif upon the ocean waste without an owner to claim it. The trustee is therefore not to be subjected to a claim of the Commonwealth without some evidence of title, and a time and place to defend against it, for he must account to the true owner, who is no party to the proceeding under the Act of 1787, and not bound by the finding of the inquest. The trustee and not he is the party in possession, and the trustee is a steward for others and must protect their rights — rights which at the time may not be defined, or even capable of definition until his account is settled. How can the ex parte finding of an inquest in such a case seat the Commonwealth upon the trust ? Dying seised or possessed is evidence of title, but not so in a case like this. How is the claim of an unknown person as the beneficial owner to be ascertained by the inquest; or in other words, how is the fact of a trust for some person not known to be ascertained, by them, except through the deed of trust and the transactions of the trustee ? But clearly this implies a power over the trustee, and a settlement of his trust; and how is this to be managed by the deputy eseheator and the inquest ? It is impossible for them to make a finding of property to be certified to the Commonwealth, except by calling in, not only the instrument of trust, but the trustee also, and investigating his affairs in order to find a fund belonging to somebody, and that somebody an unknown person. In such a proceeding it is evident that the trustee occupies the position of a party entitled to the fund, and to preserve it for the true owner, known or unknown; and therefore the right of the unknown person must be established against him by judgment. Now, for all this, the Act of 1787 and its supplements, are totally inadequate. In an attempt to administer the mode provided in them for a seisin or possession, and death without heirs or kindred, we should find ourselves at a loss in every step, and would have, in fact, to legislate, rather than administer the law. This case itself illustrates some of the difficulties to be met. It is alleged