Fry's Estate , 270 Pa. 24 ( 1921 )

Opinion by

Mr. Justice Schaeeer,

The argument of this case took a wider range than the record warrants, and its decision, necessarily based upon it, must leave the solution of most of the questions, pressed upon our attention, to future proceedings in which they can properly be raised.

What was really before the court below, as the record discloses, was the petition of Max Lewis and Benjamin Superstine, vendees under articles of agreement signed by the heirs of E. J. Fry, of a lot of land in the borough of Tamaqua, of which he died seized, praying for an order restraining Charles Graef, executor of decedent, from executing a deed for the property to George Seligman; that the agreement of sale between the executor and Seligman be declared void; that the executor bé ordered to execute a deed to petitioners; and that Seligman be made a party to the proceeding. An answer was filed by the executor, in which it was averred that the orphans’ court was without jurisdiction; that he had already executed and delivered a deed to Seligman which had been placed of record, the consideration therefor having been paid at the time of delivery; that, under the will of decedent, he is the only person having power and authority to sell the real estate; and praying for a dismissal of the petition. Seligman also filed an answer setting up substantially the matters averred by the executor, and after hearing, in which testimony was taken on both sides, the court in an opinion, in which it held the executor vested with power of sale, dismissed the petition.

Behind the controversy between the appellants, seeking title from the heirs, and the appellee, claiming title under the deed from the executor, stands the will of E. J. Pry; both sides claim through it, the one that the trusts created by it have terminated, that title is vested in the heirs of the decedent, and that the executor has no power of sale; the other that the trusts are active, that the heirs as such have no interest in the land and the executor has full power of sale. In this proceeding by strangers to the will, we cannot determine any of the questions which arise out of it; what we have here is a claim of title to a piece of land by a vendee under articles of agreement, out of possession, against a vendee in possession under a duly delivered deed; the court of common pleas and not the orphans’ court has jurisdiction of such a controversy and the parties should pursue their remedies in the manner pointed out for the settlement of disputed questions of title: North Penna. Coal Co. v. Snowden, 42 Pa. 488; Saunders v. The Racquet Club, 170 Pa. 265, 271. The appellants have an adequate remedy to assert a better title, if they have it, than that held by Seligman, but for want of jurisdiction neither the orphans’ court, in the first instance, nor the Supreme Court, on appeal from it, can dispose of the question here sought to be raised.

The decree of the orphans’ court is affirmed at appellants’ cost.