| Pa. | Jun 26, 1877
delivered the opinion of the court,
The only question raised by the demurrer in the court below as well as here is one of. jurisdiction. The learned judge of the Common Pleas dismissed the plaintiff’s bill on the ground that the facts therein presented, brought the case within the provisions of the Act of February 24th 1884, which gives to the Orphans’ Court jurisdiction to decree specific performance, “ whenever any person shall, by a bargain or contract in writing, bind himself to sell and convey any real estate in this Commonwealth, and shall die seised or possessed of such real estate without having made any .sufficient provision for the performance of such bargain or contractand,
The substance of the plaintiffs’ bill is, that the testator, William M. Wiley and George Calder, Jr., one of the defendants below, associated themselves, as partners, in the business of manufacturing cotton goods, for the term of five years from the 1st of October 1870; and, in their articles of partnership, agreed that if either should die during the term the survivor should take the real estate, mill and machinery at a valuation of $60,000, and pay to the heirs or assigns of the deceased partner the amount of his interest therein, in five equal annual instalments, with interest, to be secured by bond and mortgage on the mill property; and take the personal property of the firm at a fair valuation. The real estate was conveyed to them as partners, to be held, as specified in the deed, “ in such parts and proportions as that when the interest hereby conveyed is added to the share or interest already owned by said parties of the second part respectively, they shall be each seised and possessed of and in such parts and proportions of said premises and subject to such conditions, restrictions and limitations as are provided for in the articles of partnership;” and, by subsequent writing, it was declared that they held the same “ as partners in equal interest, shares and parts.” Upon the decease of Mr. Wiley, during the term, the surviving partner went into the sole possession of the real estate, under the articles of partnership, and has so continued ever since.
In pursuance of the authority contained in the will of the deceased partner, his executors united with Mrs. Wiley in executing and tendering a deed to the survivor for the “ real estate, mill and machinery,” and requested him to give a mortgage as provided in the articles of partnership; but, he declined to accept the deed or give the mortgage, and thereupon they filed their bill, praying specific performance of the contract of partnership, including the payment of all moneys due the estate, and the execution and delivery of the mortgage for the amount not then due by the terms of the articles.
Had the Orphans’ Court exclusive jurisdiction of the subject ? We think not. As. was said in Brinker v. Brinker, 7 Barr 55, the draftsman of the Act of 1884 had in his eye the case of an ordinary bargain and sale of real estate; and whenever it appears that the parties entered into a written contract for the purpose of selling and conveying real estate, and either has died without having made provision for its performance, there can be no doubt as to the exclusive jurisdiction of the Orphans’ Court; but it is limited to the class of cases specified in the act. It was never intended by the framers of the Act of 1834 to oust the jurisdiction of equity in the settlement of partnership transactions, in which questions of title and specific performance of agreements in relation to real estate are
The articles of partnership in this case cannot be regarded as a contract for the sale of land within the meaning of the Orphans’ Court Act. The object of the parties ivas to provide an easy and convenient mode of settling the partnership business, in the event of the death of either partner during the term; and, in carrying the agreement into effect, it was essential that there should be a settlement of the partnership accounts and a valuation of the personal property. It was not contemplated that the survivor should purchase and pay for the real estate a specified sum without regard to the state of the partnership accounts. On the contrary, it was provided that he should at once succeed to the sole ownership of the real estate, mill and machinery, and, in settlement of the partnership, be charged with the same at the valuation agreed upon by themselves; and the net interest of the deceased partner therein should be secured by the mortgage. The amount of the mortgage could be determined only by a settlement of the partnership business, and accounts between the partners. The personal property, in like manner, was to be taken and paid for by him at a valuation to be fixed thereon. In short, a full and final settlement of the partnership affairs is necessarily involved in carrying out the agreement.
The decease of Mr. Wiley during the term determined absolutely that which before was uncertain and contingent; and in the absence of an amicable settlement, the intervention of a court of equity was required to state an account between the survivor and the personal representatives of the deceased partner, and decree that the surviving partner shall accept the real estate and give the mortgage for the amount due thereon according to the articles of partnership. The Orphans’ Court has no power expressly or by implication to take cognizance of partnership dealings and state an account between the surviving partner and the personal representatives of the deceased. The fact that the executors and the surviving partner in this case were able to adjust and settle their accounts amicably, so far as to ascertain the interest of each partner, did not oust the jurisdiction of the proper court. It facilitated, to that extent, the settlement which was necessarily required; but owing to a difference of opinion as to the mode of conveying title, they failed to effect a full and final settlement, as contemplated, by the articles of partnership; and hence it became necessary to invoke the equitable powers of the court.
We are of opinion that the Court of Common Pleas is the proper forum, and that its decree will invest the surviving partner with a good and sufiScient title, such as was contemplated by the agreement.