Daily's Appeal , 87 Pa. 487 ( 1878 )

The judgment of the Supreme Court was entered

Per Curiam.

If the contract of Jeremiah Daily had been made by both of the executors under the power in the will of Peter Soxman, deceased, or had it been executed by their deed, the Orphans’ Coui’t would scarcely have been justified in setting it aside. There is no doubt of the jurisdiction of the Orphans’ Court over testamentary powers, as held in Dundas’s Appeal, 14 P. F. Smith 325. But when the power is committed to the executors by name or description, they exercise it by virtue of the will of the testator, and not by a power acquired under the order of the Orphans’ Court. In such a case, therefore, there must be abuse or great improvidence in the exercise of the power to justify the interference of the court by setting aside the act of the executors. In this case, however, the sale was invalid because of a want of a due execution of the power of sale by both executors; and therefore, though for a full price, we cannot say the Orphans’ Court erred in setting aside the sale. Whether the other executor hereby assented to the sale is a disputed fact, and there is no evidence on the record to support.

Decree affirmed, with costs to be paid by the appellant, and the appeal is dismissed.