Fuller's Appeal , 98 Pa. 534 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court,

We cannot agree with the court below in its surcharge of the account of the appellant, as guardian of the minor children of Robley D. Beatty, in the sum of $10,000, the balance of the Cassidy mortgage. ITe was charged with this amount on the ground, that, after' Beatty’s death, he assumed, in some conversations which he at different times had with the widow and administrator, to pay this mortgage.

But conceding this assumption to have been clear and distinct, and not within the prohibition of the Act of the 26th of April 1855, yet we cannot see how a contract of this kind can be enforced by a decree of the Orphans’ Court.. There is in this no money or other assets of the wards ; it is at best but an agreement with the representatives of Beatty’s estate, .which must be enforced by ordinary process in the Common Pleas.

But there is an alleged consideration back of this assumption; were it not so the undertaking to pay the mortgage would be altogether worthless. That consideration arises from the agreement between the appellant'and Robley D. Beatty, of the 29th of November 1875, by which the appellant agreed to sell to Beatty four and one-half tenths of the “ Franklin Silver Lode, in Deer Lodge county, Territory of Montana,” and on which Beatty paid to the appellant $10,000.

By the same paper it was agreed that if Beatty became dissatisfied with his purchase, the appellant was, within one year from the date of the agreement, to refund the money so paid by Beatty. It is now alleged that Dr. Fuller, the appellant, somehow became liable to repay this money, and thus arises the consideration for the assumption of the mortgage. Let all this be admitted, and we have but an agreement by Fuller to pay the money due on his contract in a particular manner; that is to say, by the payment of the mortgage which Beatty executed in order to raise the money paid to Fuller. But how was this contract to be enforced ? Certainly not by a decree of the Orphans’ Court, which necessarily presupposes that this claim had passed to the guardian as part of the liquidated assets of his wards, nor even by process in equity to compel him to pay the mortgage, but by an action at law brought by the representatives of Beatty’s estate for the recovery of the damages resulting from a breach of the contract.

We think, therefore, as to this item, the Orphans’ Court exceeded its jurisdiction in attempting to try and dispose of a question involving, at most, only the breach of a contract made ' by the appellant with the decedent, in his lifetime, and wdiich must of necessity pass to, and be disposed of by, the representatives of Beatty’s estate.

The remaining exceptions are dismissed; for though we are not without doubt as to some other of the charges against the appellant, we cannot certainly say that the court erred in allowing them.

The decree of the court is now reversed and set aside as to the surcharge in the appellant’s account of $10,000on account of mortgage on homestead,” and confirmed as to the balance of said account. And it is further ordered that the appellees pay the costs of this appeal.

Sterrett, J., dissents.