Opinion
October 10, 1934.
November 26, 1934.
Jurisdiction — Courts — Trusts inter vivos — Orphans' court — Common pleas courts — Executor holding legacy in trust — Act of June 26, 1931, P. L. 1384.
1. Where an executor of an estate in which an account has been adjudicated and distribution ordered, agrees to hold in trust for a legatee the latter's share of the estate, a trust inter vivos is created and the court of common pleas has jurisdiction of a bill for an accounting under the trust so created. [319-20]
2. Under the Act of June 26, 1931, P. L. 1384, the jurisdiction over trusts inter vivos conferred upon the orphans' court is concurrent with that of the courts of common pleas, and the jurisdiction of the latter is not thereby taken away. [320]
Argued October 10, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 332, Jan. T., 1934, by defendant, from decree of C. P. No. 2, of Phila. Co., March T., 1934, No. 5511, in case of Charles Schwartz v. Theresa Schwartz. Judgment affirmed.
Bill in equity for accounting.
Rule to dismiss bill for want of jurisdiction discharged.
The facts are stated in the opinion of the lower court by STERN, P. J., which is as follows:
In 1906, Charles Schwartz, father of the plaintiff and husband of the defendant, died, owning certain real and personal property. His executors filed an account in the orphans' court which was duly adjudicated and distribution was ordered.
The bill in equity in the present case is brought by the decedent's son against his mother, who was one of the executors, and alleges that the defendant converted all the decedent's real estate into personalty, but that the plaintiff never received his share of the estate, either of the personal property or of the proceeds of the real estate thus converted into personalty.
Of course if there were no other facts in the case the plaintiff's remedy would clearly be in the orphans' court to enforce performance of its decree adjudicating the account and distributing the estate. The plaintiff's bill, however, alleges further that the defendant declared and agreed "to hold the plaintiff's share of the balance of the personal estate left for distribution as aforesaid and the proceeds from the sale of the real estate in trust for the plaintiff, to pay the same to the plaintiff from time to time as he may direct." The bill further alleges that the plaintiff did receive from the defendant on account of the amount due him under said trust the sum of five thousand dollars, but no further accounting or payment.
The bill prays an accounting by the defendant under the said declaration and agreement of trust.
The defendant took a rule to show cause why the bill of complaint should not be dismissed for want of jurisdiction on the ground that only the orphans' court can take cognizance of the plaintiff's cause of action.
The fact that the property in the hands of the defendant originally came to her as executrix has no significance in view of the fact that being possessed of such property she expressly declared herself a trustee of it and agreed to hold it thereafter in that capacity. This made her possession exactly the same as if she as executrix had paid to the plaintiff the amount due to him, and he had then put it back into her hands under an agreement of trust. In other words, she no longer held the property as executrix but as trustee, and the property itself took on the character of a trust inter vivos by express agreement between the parties. The bill in equity, therefore, is not to enforce the decree of the orphans' court but the terms of an express trust.
The defendant contends that the courts of common pleas were deprived of their jurisdiction over trusts inter vivos by the Act of June 26, 1931, P. L. 1384. This act conferred jurisdiction over such trusts in the orphans' court, but it is too clear for argument that the jurisdiction thus granted was to be concurrent with that of the courts of common pleas, and that the jurisdiction of the latter was not thereby taken away. This was expressly held by Judge GEST in Breyers' Estate, 19 Pa. D. C. 255. See also 15 C. J. 1131, section 578, and Kline v. Wood, 9 S. R. 294 (page 298).
For the reasons thus stated the court discharged the defendant's rule.
Defendant appealed.
Error assigned was discharge of rule, quoting record.
George J. Edwards, Jr., for appellant.
Harry A. Jones and Barnet Lieberman, for appellee, were not heard.
The judgment in this case is affirmed on the clear and concise opinion of the learned judge of the lower court.