Campbell's Appeal , 80 Pa. 298 ( 1876 )

Judgment was entered in the Supreme Court,

Per, Curiam.

This case has been so well developed, and so clearly stated by the distinguished master, the late Chief Justice Thompson, that nothing is left to be said upon the merits. The marriage settlement was clearly post-nuptial, and most probably was dictated by Mr. Hammett bimself. 'The second writing misrecited the first in important particulars. We think Mrs. Hammett was not bound by either.

We concur with the master that the Court of Common Pleas had jurisdiction of this bill. It involved no question of settlement and did not touch the estate of Mr. Hammett, except in its consequences, as the consequence may attend any other proceeding or action in the Common Pleas. Its purpose was merely to set aside an instrument unduly obtained, injurious to the rights of the party. It is true the cancellation of the paper affects the measure of distribution, by removing the evidence of a fact, which, if suffered to be proved, would enter into the question of distribution. But this is no more than would follow the death of a witness or his conviction of an infamous crime, or a claim of title for or against the estate enjoined by a decree. On the contrary, equity exercises its most appropriate function here, when it removes out of the way of the Orphans’ Court an obstruction constantly occurring to hinder or delay distribution. The case of Dundas’s Appeal, 23 P. F. Smith 474, and Linsenbigler v. Gourley, 6 P. F. Smith 166, do not touch the point now before us. Dundas’s Appeal rested on the fact that it was a proceeding, in distribution, for a share of the estate, where' the Orphans’ Court necessarily must take jurisdiction of the question of ownership of its share in order to remove it out of the way of a decree; as in Souder’s Appeal, 7 P. F. Smith 498. If Mrs. Hammett had proceeded in the Orphans’ Court for the recovery of her share of the estate, and the post-nuptial marriage settlement had been set up as a bar, the Orphans’ Court would have taken jurisdiction of the question as a necessary consequence of its rightful jurisdiction over the distribution of the estate. But this is no objection to the exercise of the jurisdiction of the Common Pleas over this particular question, as within a head of equity not forbidden bylaw, and before jurisdiction of the Orphans’ Court had attached. The decree itself shows that no matter of settlement or touching the administration of the estate was drawn within the power of the Common Pleas. No power of the Orphans’ Court was trenched upon. It therefore does not conflict with the statement in Linsenbigler v. Gourley.

Decree affirmed, with costs to be paid out of the estate of B. Hammett, and appeal dismissed.