Lafferty v. Corcoran

Executors and administrators — Trustees—Orphans' court — Common pleas. Where the executors and trustees of an estate employ a person at a salary to act as their agent in collecting rents, and subsequently the agent is appointed a coexecutor and cotrustee, and continues to collect the rents under an agreement by which he is to receive a salary in addition to his share of commissions, he cannot be compelled to account for the rents collected after his appointment as coexecutor and cotrustee in an action in the common pleas, but only by proper proceedings in the orphans’ court.

Appeal, No. 429, Jan. Term, 1896, by-plaintiffs, from judgment of C. P. No. 1, Phila. Co., Dec. Term, 1894, No. 964, for defendant on demurrer. Attachment under the act of March 17, 1869. The plaintiffs’ statement was as follows : Plaintiffs, the executors and trustees of the will of Charles Lafferty, deceased, seek to recover the sum of $10,700, with interest from June 1,1894. In the lifetime of the said Charles Lafferty, defendant was employed by him to collect the rents of his real estate and to forthwith pay over the money to him, and in consideration of his services defendant received a salary of $600 per annum, which was paid by said Charles Lafferty. Upon the decease of said Charles Lafferty and the grant of letters upon his estate by the register of wills of Philadelphia county to plaintiffs, they employed the said defendant to collect said rents from the real estate belonging to said estate, and forthwith deposit the same in the safe belonging to the estate in the office of the executors in the city of Philadelphia, where said money was to remain until deposited in the Fidelity Insurance, Trust and Safe Deposit Company to the credit of the estate of said Charles Lafferty, deceased. Defendant entered upon said employment, collected said rents, forthwith deposited the same in the safe of the estate in the office of the executors, and from time to time deposited said money in The Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate. On October 13,1888, the orphans’ court of Philadelphia county appointed defendant an executor and trustee, and defendant agreed, in addition to his duties as said executor and trustee, to continue to collect the rents from said real estate, deposit the same forthwith in the fireproof safe belonging to said estate in the office of the executors, such money to be from time to time deposited in The Fidelity Insurance, Trust and Safe Deposit Company to the credit of said estate, and in consideration thereof plaintiffs agreed to pay defendant said salary in addition to his share of commissions from said estate. Between November 1,1890, and June 1, 1894, at various times well known to the defendant, and which he refuses to disclose to plaintiffs, and which plaintiffs do not know, the said defendant having collected large sums of money from said rents and deposited said sums in the said fireproof safe, subsequently, without taking them out for deposit, took the same into his possession and converted to his own use, the sum, $10,700, so deposited in said fireproof. Defendant had no right to take said money from said safe. No part of said money was due to the said defendant upon any account whatsoever, and no part was used for any purpose of said estate or with the knowledge or consent of said plaintiffs. All of said money was taken from the fireproof and from the estate by said defendant and converted by him to his own use. No part of said'money has ever been paid by defendant to said estate, and all of said money is still due and owing to said estate by defendant, with interest as aforesaid. The defendant demurred to the statement for the following reasons: 1. That the statement discloses that there are three executors and trustees of the last will and testament of Charles Lafferty, deceased, while the action is brought by only two of said executors ; and in the absence of any reason for so doing, all the executors should be parties plaintiff. 2. That the statement discloses that the defendant is a co-executor and trustee with the plaintiffs, and that the real issue is a question of accounting between executors and trustees, for which there is no right of action in the court of common pleas. 8. That the statement shows that the money sought to be recovered by this action arises from a question of accounting by executors to the estate for which they are executors and trustees, and that defendant is one of said executors and trustees; and it is therefore a subject of inquiry only by the orphans’ court of the county of Philadelphia, in which the court of common pleas has no jurisdiction. The court sustained the demurrer. Plaintiffs appealed. JSrror assigned was in sustaining the demurrer. The jurisdiction of the common pleas in this case may be rested on the act of March 17, 1869, which makes it the duty of the prothonotary to issue an attachment against any defendant or defendants upon the application of any plaintiff or plaintiffs upon proof by affidavit that defendant or defendants are justly indebted in a sum exceeding $100, the nature and amount being set forth, and that the defendant fraudulently contracted the debt or incurred the obligation. Act of March 17,1869, sec. 1, P. L. 8, Purd. Dig. 1, p. 68: Swartz v. Lawrence, 12 Phila. 181. There is nothing in the general language of the statute to exclude executors from its benefits: Mechanics’ Bank v. Miners’ Bank, 41 Leg. Int. 312; Moffatt v. Van Millingen, 2 Bos. and Pul. 124 n. In Pennsylvania the cases of Sergeant v. Ewing, 30 Pa. 75; Swain v. Ettling, 32 Pa. 486; Kimble v. Carothers, 81 Pa. 494; and Pringle v. Pringle, 130 Pa. 565, establish the principle that the test of jurisdiction is not the fact that the action is by an executor or against an executor, or even by one executor against another, but it is whether the legal right is enforceable by an action at law, and especially, no matter how the parties may be named in the pleadings, the real capacity in which the suit is brought. The orphans’ court has no jurisdiction to compel an account by one who, as the bailee or agent of trustees, obtained possession of property of the trust estate, and who, after the death of the trustee, remained in possession thereof without lawful authority. The proper remedy is for those entitled to the lawful possession to bring an action at law against bbe trustee de son tort, or by bill in equity, when an account is necessary: Delbert’s App., 83 Pa. 468; Robinson’s Est., 12 Phila. 170; McBride’s App., 72 Pa. 484; Ryan’s Est., 35 Leg. Int. 431; Ainey’s App., 2 Penny. 192. Suits by executors against each other to recover shares of commissions are maintainable in the court of common pleas: Shaw v. Betts, 4 Atl. Rep.'731; Woodward’s Est., 6 Kulp. 7. The attachment was void ab initio: Act of March 17,1869, P. L. 8. Act of March 29, 1832, P. L. 190; Act of June 16, 1836, P. L. 784; Shollenberger’s App., 21 Pa. 341; Act of May 1, 1861, P. L. 680; Coaks v. White, 11 W. N. C. 271. The service of the writ should be set aside because it was improperly made: Nebenzahl v. Saberlwitz, 1 Luz. Leg. Reg. 595; Cleland v. Cassell, 1 Lack. Jur. 261; Hayes v. Gillespie, 35 Pa. 155; Duffee v. Records, 12 W. N. C. 287. The statement disclosed no cause of action: Kimball v. Carothers, 81 Pa. 494; Pringle v. Pringle, 130 Pa. 565; Delbert’s App., 83 Pa. 468.