Ake & Feay's Appeal , 1 Foster 295 ( 1873 )

The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The Orphans’ Court is not possessed of general equity jurisdiction, nor do those rules apply to it, which both in England and in this country have so amplified that jurisdiction by enabling it, when once rightfully possessed of a cause, to make a complete end of the controversy. This is certainly a very valúa-' ble principle in the practical administration of justice. But there are many good reasons why it should not be applicable to Orphans’ Courts." It would bring within their reach all matters of controversy or dispute, not only in the settlement of estates of decedents, but with other parties. The jurisdiction of that court is, however, special, and derived entirely from statute, though it has undoubtedly all the powers necessary to make its jurisdiction effective, and in the exercise of those powers, applies the rules and principles of equity : Willard’s Appeal, 15 P. F. Smith 265. The Act of February 24th 1834, § 15, Pamph. L. 75, confers upon it jurisdiction to compel the specific performance of the contracts of decedents for the sale of real estate. This may be either upon the application of the executors or administrators of the deceased vendor, or on the application of the vendee or any other person interested. It is essential, in order to carry out the design of this act, that the court should have power to inquire and determine whether the whole or how much of the purchase-money has been paid, and to make such a decree as will compel specific performance by the vendee. But when that purpose is reached its jurisdiction is exhausted. We can find nothing in this or any other Act of Assembly which goes beyond this special purpose. If, in the account between the parties, it is found that the purchaser has overpaid the amount of the agreed purchase-money, it cannot proceed to make a decree against the estate of the deceased vendor for the balance found to be due upon such account. In speaking of the Act of Assembly in question, Mr. Justice Bell says : “ Under the statute investing it (the Orphans’ Court) with authority, the only final decree contemplated is of specific performance:” McKee v. McKee, 2 Harris 237. It was in the case of a proceeding under this same law that Mr. Chief Justice Gibson remarked: “Although the Orphans’ Court has been called a court of equity in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it:” Brinker v. Brinker, 7 Barr 55. We hold then that so much of the decree below as ordered that the executors of Jacob Duck, deceased, should pay the balance found due to the petitioner, was erroneous.

We think that the endorsement of October 2d 1851, on the contract of sale, formed a part of the agreement, and although upon the principle of Vicary v. Moore, 2 Watts 451, it may have made the whole parol, yet the subsequent receipt by Jacob Duck, under seal of April 18th 1859, ¿lade it again a specialty. It follows that Patterson’s share of the timber sawed was a proper credit on account of the purchase-money, and the Statute of Limitations interposed no bar. As the amount of this credit, according to the finding of the auditor, exceeded the purchase-money due, this renders it unnecessary to consider the question, whether the estate of the decedent was properly charged with the spoliation by the adverse claimant, Ross, of the timber, during his possession under his recovery in ejectment. In any action or proceeding by Patterson against Duck’s estate, the amount of the purchase-money as ascertained by this report to have been paid from the timber will be a credit for which the estate will be entitled to a deduction.

So much of the decree as orders that the executors do execute a deed in fee simple to the petitioner is affirmed, and the residue is reversed. Each party to pay his own costs of this appeal.