Mussleman's Appeal , 65 Pa. 480 ( 1870 )

The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

In the early period of the Orphans’ Court in this state, it occupied a low place in the judicial system ; and even in the first quarter of this century, its decrees could be set aside collaterally: Messinger v. Kintner, 4 Binney 97; Snyder’s Lessee v. Snyder, 6 Binney 488. In the latter case Judge Yeates questioned the doctrine, and did so again in Huckle v. Phillips, 2 S. & R. 10. It was not until the able and exhaustive opinion of Judge Duncan, delivered in 1824, in McPherson v. Cunliff, 11 S. & R. 422, which settled the proper position of the Orphans’ Court, that it reached its true dignity, and the way was prepared for the revision of the Orphans’ Court system, its jurisdiction, powers and practice, contained in the Acts of 29th March 1832, 24th of February 1834, and 16th of June 1836. Under these laws, the Orphans’ Court came up to the full measure of a court of record, standing upon an equality with the others. At first, the true extent of the work was not perceived, especially by those who disliked to unlearn what they knew, and who took with difficulty to a new system. But its powers have grown clearer to the professional vision, and its utility increased in appreciation. Hence, in Seider v. Seider, 5 Whart. 208, it was held, that ejectment will not lie by heirs against a widow in possession, but the proceeding must he by partition in the Orphans’ Court. The converse followed, that the widow of an intestate, dying seised, cannot maintain dower in the Common Pleas, but must resort to partition in the Orphans’ Court: Thomas v. Simpson, 3 Barr 60; Evans v. Evans, 5 Casey 277. So the jurisdiction of this court is exclusive to enforce payment of legacies charged on land, and extends to the alienee of the title: Mohler’s Appeal, 8 Barr 26; Gibson’s Appeal, 1 Casey 191; Chess’s Appeal, 4 Barr 52. Judge Rogers exhibits the decided advantage of the proceeding in the Orphans’ Court for specific performance of a decedent’s contract over the clumsy proceeding to prove contract in the Common Pleas. It is perhaps unfortunate that this court had, in an earlier case, held that the Common Pleas jurisdiction was not taken away: Wetherill v. Seitzinger, 9 W. & S. 177; Shull v. Stephens, MS., December 20th 1852. Then came Myers v. Black, 5 Harris 193, in which it was held, that ejectment will not lie to enforce specific performance of the contract of a decedent vendor, hut that the exclusive remedy of the vendee is in the Orphans’ Court, in pursuance of the terms of the Act of 1806, which requires the statutory remedy to be followed. This is reaffirmed in Porter v. Dougherty, 1 Casey 405; and see Anshutz’s Appeal, 10 Casey 375. Holiday v. Ward, 7 Harris 485, decides, that the question of advancement belongs wholly to the Orphans’ Court, and cannot be settled in an action of ejectment. The argument of C. J. Black, maintaining the exclusiveness of the Orphans’ Court, is very forcible. Shollenberger’s Appeal, 9 Harris 337, decided finally, overturning Richards’ Appeal, 6 S. & R. 464, that the confirmation of a guardian’s settlement was a final decree against his ward for a balance found due to the guardian, for which a fieri facias could issue, and that the remedy was in the Orphans’ Court alone. The opinion of Judge Woodward is an able exposition of the jurisdiction and powers of the Orphans’ Court. Ashford v. Ewing, 1 Casey 213, decided, that since the Acts of 1832, 1833, 1834, and 1836, the Orphans’ Court has exclusive jurisdiction to make and enforce distribution of the estates of decedents, and that a common law action will not lie for a distributive share. The opinion of C. J. Lewis contains a full statement of the subject of jurisdiction. This was followed by Black v. Black, 10 Casey 354, in which the present chief justice takes strong ground for exclusive jurisdiction. Loomis v. Loomis, 3 Casey 233, touches more immediately the case before us. It holds, that the Court of Common Pleas, even as a court of equity, cannot interfere in a matter within the exclusive jurisdiction of the Orphans’ Court, and therefore it could not entertain a bill in equity to compel an executor to pay debts and legacies out of personal estate, and enjoin against the sale of the real estate.

I have been thus specific in stating the powers and'jurisdiction of the Orphans’ Court, because of the merits of this case, and our strong desire to sustain the bill in the Common Pleas. But it cannot be done. The case is this: Samuel Mussleman made his will on the 12th of December 1866, ordering his land to be sold to the best advantage, subject to a dower, as he terms it, of $4000, to remain for the use of his widow, during widowhood, and directing the proceeds of sale to be distributed among his children, and he appointed- John Mussleman, the plaintiff in this bill, his sole executor. The power of sale was given to no one by name or description, and it therefore fell within the 12th section of the Act of the 24th of February 1834, to wit: “ All powers, authorities and directions, relating to real estate, contained in any last will, and not given to any person by name or description, shall be deemed to have been given to the executor thereof, but no such power, authority or direction, shall be exercised or carried into effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” Thus it is evident that the jurisdiction over any sale made by executors under the power conferred by this section is vested exclusively in the Orphans’ Court, for to that court alone is the control and direction over it given. It is argued by the appellants, that the power is vested in the executor by force of the will itself, because the distribution of the proceeds of sale is to be made by him, but the .distribution itself is not vested in the executor by the terms of the will, and were it so, it has been held as most accordant with the express words of the law, the power of bale not being by name or description, the jurisdiction of the Orphans’ Court is not excluded: John Wood’s Estate, 1 Barr 371-2; Houck v. Houck, 5 Id. 273; McFarland’s Appeal, 1 Wright 300; and even were the power expressly conferred upon the executor, the Orphans’ Court has jurisdiction to control its exercise at the petition of a party in interest, under the Acts of 1832 and 1836, as we held at Philadelphia last term, in the case of Dundas’s Estate, 14 P. F. Smith 325.

This exclusiveness derives still greater force from analogous legislation. The 15th section of the act of the 14th of June 1836, relating to assignees for creditors and other trustees, vests jurisdiction in trusts generally in the Court of Common Pleas, but is followed by this proviso, “ that nothing herein contained shall extend to trusts created by will and vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are answerable to the Orphans’ Court.” This proviso has evident reference to the powers conferred on the executor by the 12th section of the Act of the 24th of July 1834. A similar division of power will be found in the Act of the 18th of April ‘1853, called “ Price’s Act,” where, in all cases of real estate acquired by descent or will, the Orphans’ Court takes jurisdiction, and in all other cases, the Court of Common Pleas.

The bill of John Mussleman, the executor, sets forth the death of Samuel Mussleman, his last will, the power of sale, the sale by him, as executor, to James D. Bell, for the sum of $29,015.75; Bell’s knowledge of the will, his payment of $2859.67, as hand-money, taking possession of the land, changing the terms of the tenant’s lease, clearing land and taking off a large quantity of valuable timber and other matters, and prays specific performance of the contract. Mussleman made this sale without an order or direction of the Orphans’ Court, or a confirmation of his account. From what has been said, the case being within the exclusive jurisdiction of the Orphans’ Court, under the 12th section of the Act of 1834, the sale by Mussleman was either wholly void, from want of an order of sale, or, if it can be ratified, it can be done only by the Orphans’ Court. The court below was -therefore right in sustaining the demurrer to the jurisdiction of the Common Pleas, though not precisely for the reasons given.

This brings us to consider of the decree we should make. From the facts stated, if the sale can yet be ratified by the Orphans’ Court, the plaintiff should not lose his remedy, and, he should have specific performance. .The remedy provided in the terms of sale is inadequate in a case like this, when the purchaser has taken possession, changed the character of the land in part, and stripped it of valuable timber. The widow’s dower constitutes no objection, as she has released. Owing to Bell’s own acts, time was not of essence in the making of the title, and the doctrine o'f equity is, that when time is not of essence, a decree will be made against the purchaser, if the seller can make a good title at the time of decree, unless there has been bad faith, or an improper speculation attempted: Sugden on Vendors 249; 2 Story’s Equity, § 777; Coffin v. Cooper, 14 Vesey, Jr., 205; Ley v. Huber, 3 Watts 367; Tiernan v. Roland, 3 Harris 429. The question then is, whether the Orphans’ Court can ratify a sale made by an executor under the 12th section of the Act of the 24th of February 1834, without having made a previous order of sale. On general principles a power to order would include a power to ratify. But the executor in this case derives his power to sell from the law acting upon the will, and not from the court; and it is the exercise of the power only which is subjected to the control of the court: Wood’s Estate, 1 Barr 371. Having the power at law, it would seem as if its exercise is not so absolutely void that it may not be ratified by the court, in a case where the court would confirm the sale, if made under its previous order. We are not without instances of ratification in analogous cases. In Klingensmith v. Bean, 2 Watts 486, an Orphans’ Court sale made at a term after the order of sale had expired, and subsequently reported to the court and confirmed, was held to be valid by ratification. So, an order of publication directed to be made in two newspapers, and published in but one, was held to be good 'by ratification: Sankey’s Appeal, 5 P. F. Smith 491. In Wood’s Estate, supra, it was said in reference to an order of court directing a lumping sale, that it was an injudicious exercise of the controlling power of the court, and that the interests of the devisees would be better promoted, by leaving the disposition of the estate in the discretion of the executors, who, it is to be pr esumed, are most competent to judge as to this matter. This was said, of course, on the ground that the power of control remained in the court, which could refuse to confirm it, if the sale were injudicious.

A question has been suggested, whether Bell, the purchaser, can be made amenable to the jurisdiction of the Orphans’ Court. But there is no real difficulty in this. He is a party to the sale over which the court exercises control, and can therefore be brought in by citation to protect his own interests. This is supported by decisions in analogous cases. Thus, when the vendor and vendee of real estate are deceased, and intestate,in a proceeding for specific performance the administrator and the heirs of the vendee, as well as the heirs of the vendor, were required to be brought into the Orphans’ Court and made parties: Anshutz’s Appeal, 10 Casey 375. So, in a case of legacy charged on real estate, the alienee of the devisee was brought into the Orphans’ Court by citation, and made personally liable to payment by its decree: Gibson’s Appeal, 1 Casey 191. In proceedings in partition in the Orphans’ Court, the alienee of the heir is the proper party, and succeeds to the right of election: Ragan’s Estate, 7 Watts 438; Painter v. Henderson, 7 Barr 48; The Orphans’Court may also bring in creditors, in cases of distribution of assets: Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Harris 286. So its decree in the widow’s $300 provision is binding on creditors: Runyan’s Appeal, 3 Casey 121; Spencer’s Appeal, Id. 218. Provision is fully made for the exercise of its jurisdiction by the Orphans’ Court, in the 57th section of the Act of the 29th of March 1832, and “ on petition of any one interested, whether such interest be immediate or remote, setting forth facts necessary to give the court jurisdiction, the specific cause of complaint and the relief desired, supported by oath or affirmation, the Orphans’ Court, or any judge thereof in vacation, may award a citation at a day certain, not less than ten days after the issuing thereof.” This is followed by all the means of enforcing the decree of the court possessed by courts of equity and of law. The doctrine of Dundas’s Estate, fully sustains the power, and, indeed, the duty of bringing in the purchaser, because of his interest in the sale.

Upon the whole case, therefore, we affirm the decree of the Court of Common Pleas, sustaining the demurrer and dismissing the bill, on the ground of want of jurisdiction, with costs to be paid by the appellant; but without prejudice to the right of the appellant to proceed hereafter in.due course of law to obtain confirmation of the sale made by him as executor of Samuel Mussleman to James D. Bell, and to compel specific performance of the same by the said Bell.