Hazard's Estate , 253 Pa. 447 ( 1916 )

Per Curiam,

The court below was without jurisdiction to make the decree appealed from: Willard’s App., 65 Pa. 265. On that case the court below undertook to do just what was done here, and, in reversing its decree, we said, through Mr. Justice Sharswood: “It would, perhaps, be a very convenient practice immediately upon the death of a decedent to have all possible questions which might arise upon the construction of his will, and in the settlement and distribution of his estate, settled by a decree of the Orphans’ Court in limine, and by way of anticipation, and by an appeal to the Supreme Court from such a decree, have a final and conclusive determination of the subject. It would certainly save counsel a great deal of responsibility in giving advice. But the acts of assent bly which confer jurisdiction on the Orphans’ Court may be searched in vain for any such power. Without authority so derived we must say that the decree below or in this court on appeal would be inconclusive and possibly a snare. It would not be binding upon any of the parties: certainly not upon those of them not sui juris. Consent cannot give jurisdiction. Any opinion which we should express upon the proper construction of this will in this appeal would be merely extrajudicial.” Tyson v. Rittenhouse, 186 Pa. 137, and Tyson’s Est., 191 Pa. 218, the cases upon which the court below relied as authorities for its jurisdiction, are clearly distinguishable. There, as was pointed out by Mr. Justice Mitchell, the estate of the husband and that of his wife were in process of settlement in the Orphans’ Court, and personal representatives .of each of the deceased were there for the supervision and control of their management of their respective trusts under the two wills. It was for that reason we held the Orphans’ Court had .jurisdiction.

Decree reversed at appellee’s costs, without prejudice to his right to assert title to the premises No. 901 Clinton street, in the City of Philadelphia, in a proper proceeding instituted for that purpose.